Opinion by

PRESIDING JUSTICE MURPHY.

Not to be published in full.

MR. JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken from summary judgments entered in the Circuit Court of Cook County against Mary Moore and in favor of Joseph M. Dvorak and George Kotas. Mary Moore, hereinafter referred to as the plaintiff, had brought an action to recover money which she alleges was wrongfully paid to defendant Dvorak in connection with a second mortgage allegedly procured by fraud and deceit. The plaintiff claims additional moneys paid to Kotas by virtue of the same fraud and also asks to have removed as a *323cloud on title to real estate a separate second mortgage held by Kotas.

The case grew out of a real estate transaction. In the original complaint filed by the plaintiff, Harold Pinkert, Joseph Dvorak, Anthony Broccolo and George Kotas were all named as parties defendant. Motions for summary judgment were filed by Pinkert, Dvorak and Kotas. On the hearing on the motions the court entered an order permitting the plaintiff to file an amended complaint and taking the motions for summary judgment under advisement. Upon the filing of the amended complaint plaintiff dismissed out Pinkert and Broccolo. Defendants Dvorak and Kotas filed petitions asking that summary judgments be entered upon their motions previously filed.

The court entered a summary judgment in favor of defendant Kotas, in which judgment order it stated that the admissions of the plaintiff in her deposition and in the amended complaint negative the existence of a cause of action by the plaintiff against Kotas. In the judgment order in favor of Dvorak the court found that the amended complaint did not state an action against Dvorak and that the deposition of the plaintiff contained admissions negativing the existence of any liability of Dvorak to the plaintiff.

The instant lawsuit is based on an attempt of the plaintiff to recover money from those who allegedly profited by a series of complicated financial transactions in connection with the purchase of a home and who have in their possession money in equity and good conscience belonging to her.

In order for a full understanding of the case it was necessary for us to go to the record. This we are not required to do. However, because of the extraordinary character of the case and the flagrant disregard of the law and the principles of fair dealing *324should the allegations in the complaint be true, we prefer to determine the propriety of the entry of the summary judgments, disregarding the method in which the case has been presented to this court. McKey v. McKean, 384 Ill. 112, 115, 51 N.E.2d 189; Department of Finance v. Goldberg, 370 Ill. 578, 583, 19 N.E.2d 593; Reiter v. Illinois Nat. Casualty Co., 328 Ill. App. 234, 265, 65 N.E.2d 830.

The summary judgments were entered on defendants’ motions before the defendants had filed any pleadings. The 1955 amendment to the Civil Practice Act (Ill. Rev. Stat. 1955, chap. 110, par. 57) provided that a defendant might make a motion for summary judgment “at any time.” That amendment was modeled on Federal Rule 56. Federal cases interpreting that rule hold that a defendant may file a motion for summary judgment before he files any pleadings. Gifford v. Travelers Protective Ass’n of America, 153 F.2d 209; Lindsey v. Leavy, 149 F.2d 899. The case before us illustrates the danger of the indiscriminate application of such rule. The purpose of summary judgment procedure is to determine whether there is a genuine issue of fact involved in the case. Allen v. Meyer, 14 Ill.2d 284, 152 N.E.2d 576; Diversey Liquidating Corp. v. Neunkirchen, 370 Ill. 523, 19 N.E.2d 363. Ordinarily the issues are made up by the pleadings. From an inspection of the pleadings the court can determine whether or not a factual issue is raised. On summary judgment proceedings the court considers the pleadings, the affidavits and the entire record to determine whether or not it can be said that a material dispute exists as to the facts. People ex rel. Sharp v. City of Chicago, 13 Ill.2d 157, 148 N.E.2d 481. When there is no answer filed and the defendant petitions for a summary judgment, the court must apply the same rule, and among other things which the court can and should consider is whether or not the corn-*325plaint, standing alone, states a cause of action. It would seem better to first test the validity of the complaint by a motion to strike. No such motion was made in this case and in the Dvorak judgment order the court holds that the complaint failed to state a cause of action. There was no answer filed to the complaint, inartificially drawn as it was. In this proceeding all uncontradicted allegations made by the plaintiff must be taken as true (Roberts v. Sauerman Bros., Inc., 300 Ill. App. 213, 20 N.E.2d 849), unless there is a showing made in the affidavits and other documents in the record that the allegations cannot be proved. Loving v. Allstate Ins. Co., 17 Ill.App.2d 230, 149 N.E.2d 641.

We will first consider the judgment entered against defendant Kotas. In her verified amended complaint the plaintiff alleges that on or about June 1, 1953 she, desirous of purchasing real estate, called at the office of the Buchanan Realty Company. She was referred to George Kotas, who held himself out as a real estate broker although he had no license. Kotas called attention of plaintiff to several parcels of real estate, and about June 15, 1953 exhibited to plaintiff the property commonly known as 1836 South Millard Avenue, Chicago. Kotas took the plaintiff to call on the owner of the property to examine the premises. Kotas told the plaintiff that the owner would sell the property for $20,000 and that such price was fair and proper. He also stated to the plaintiff that he would secure for her benefit a first and second mortgage with which to finance the purchase. It was agreed that the plaintiff was to make a down payment of $2,500 and that Kotas would arrange for the execution of a first mortgage of $11,500, which was in favor of General Savings and Loan Association (hereinafter referred to as “General”), of which Harold Pinkert was president and Joseph Dvorak the attorney and general counsel. A second mortgage was procured *326by Kotas for $6,000 and executed by tbe plaintiff. As a matter of fact tbe seller had only asked $14,000 for tbe property.

In ber amended complaint plaintiff further alleges that a substantial portion of tbe $6,000 mortgage was paid to Dvorak; that sometime in January 1954 Kotas offered to construct for tbe plaintiff a basement apartment in tbe premises, for which she paid to Kotas various sums of money; that Kotas induced ber to execute a promissory note in favor of General in tbe amount of $2,874.50, stating to ber that she owed him such money; and that this was grossly in excess of tbe value of work done by Kotas. It is also alleged that she made in addition to ber regular mortgage payments, certain payments totaling $1,811, which payments were made to Kotas and accepted by him for tbe purpose of making payments to General upon tbe first mortgage, as well as upon tbe $6,000 second mortgage, but which payments were kept by Kotas in fraud of tbe plaintiff; that in October 1956 Kotas stated to ber be would arrange refinancing of tbe property and be procured a new first mortgage for $14,000 with tbe Victory Mutual Life Insurance Company (hereinafter referred to as “Victory”), payable at $136.62 per month, and in connection with the application Kotas stated that tbe cost of tbe loan was $900 and demanded that she pay him that money before tbe loan could be approved; that she paid tbe money to him; that tbe property was accordingly refinanced under bis direction; and that be refused to deliver to ber a statement of tbe disbursements of tbe loan from Victory, but retained tbe sum of $900 as bis own profit. The amended complaint further alleges that Kotas bad done some plumbing work on tbe premises and was paid certain sums of money by the plaintiff from time to time, and that on March 15, 1958 Kotas advised plaintiff that she bad signed *327an additional second mortgage in his favor in the amount of $3,500 and demanded payment thereon. The complaint prayed that she may have judgment against Kotas for various sums of money improperly received by him from plaintiff; that the second mortgage for $3,500 may be removed as a cloud on the title of the plaintiff to the premises; and that an accounting be had with Kotas concerning the value of the work which he did on the premises and that the court enter judgment accordingly.

Defendant Kotas filed a motion for a summary judgment and supported the motion by an affidavit in which, among other things, he denies that there was any fiduciary relationship existing between him and the plaintiff, and states that the plaintiff was told that the property could be purchased upon her executing a first and second mortgage and making a down payment, all of which would total the sum of $20,000, to which the plaintiff agreed, as she admitted in her deposition, as well as in open court in response to a question by the court, that she knew the purchase price was $20,000 and the figure at that time was agreeable to her. It is further alleged in the affidavit that the plaintiff, in answer to questions at the time her deposition was taken, admitted that the “second mortgage was pertinent to the full transaction,” and it is further alleged in the affidavit that the plaintiff in her verified complaint stated that there was an additional second mortgage in favor of the affiant for $3,500, about the execution of which she knew nothing. In response to this latter statement of the plaintiff, to prove that she did know of the existence of the mortgage, Kotas merely attached to his affidavit, without further explanation, certain exhibits consisting of the second mortgage note in the amount of $3,500 and contractors’ bills amounting to $1,937.32. After the amended complaint was filed Kotas filed a *328petition praying for summary judgment in accordance with his motion and affidavit theretofore filed, and in the petition he sets out that the recitals in the amended complaint that a fiduciary relationship existed between the plaintiff and himself are conclusions and set forth no facts from which these conclusions may be drawn, and he states that the amended complaint fails to correct or overcome the admissions of the plaintiff in her deposition and in open court.

The first question to be determined is whether or not the complaint contains sufficient allegations to show that Kotas was the agent of the plaintiff. The plaintiff relied on Kotas to conduct negotiations with the seller of the property. He stated to her that he would deal honestly and fairly with her and without fraud or overreaching. On oral argument it was admitted that the real estate commission was to be paid by the plaintiff to Kotas. Without such admission, the uncontradicted allegations are sufficient to establish the agency of Kotas. Hyman v. Burmeister, 216 Ill. App. 98, 100; Lerk v. McCabe, 349 Ill. 348, 360, 182 N. E. 388.

In our opinion, considering the record as a whole, there is no question that an agency relationship existed between the plaintiff and Kotas. Agents and those acting in a fiduciary capacity are held to the strictest fairness and integrity, and an agent is disabled from dealing in the matter of the agency on his own account and will be compelled to transfer the benefit of his contract to his principal. Stemm v. Gavin, 255 Ill. 480, 99 N. E. 663. “The rule is well established in equity that the relation existing between principal and agent for the purchase or sale of property is a fiduciary one, and the agent in the exercise of good faith is bound to keep his principal informed on all matters that may come to his knowledge pertaining to the subject matter of the agency. (Rieger *329v. Brandt, 329 Ill. 21.) An agent must not put himself, during the continuance of his agency, in a position adverse to that of his principal. ... If a party employs an agent to make a purchase of land he is entitled to all the skill, ability and industry of such agent to make the purchase on the best terms that can be had. (Cottom v. Holliday, 59 Ill. 176.)” Lerk v. McCabe, supra.

In the brief presented in this court the theory of defendant Kotas is that the amended complaint did not state a cause of action against him because the deposition of the plaintiff and the pleadings of the parties negative both the fiduciary relationship and any fraud and deceit, and Kotas in his brief states:

“At no point in her pleadings, deposition or argument does the plaintiff overcome or contradict the fact that she was advised that for her to buy the property with her limited funds, she would have to execute a first and second mortgage all of which would make for the sum of $20,000.00. In her motion to strike the affidavit of Kotas (R. 83), the plaintiff does not deny that she was so advised. In fact, she affirmed this in her replies upon the interrogation of the Chancellor in open court on September 8, 1958.

“Throughout the record and her brief, the plaintiff continually alleges by conclusion that the second mortgage was unnecessary in enabling her to purchase this property. Yet, when Kotas stated in his affidavit for summary judgment that she admitted in her sworn deposition that the second mortgage was pertinent to the full transaction, the plaintiff does not deny this fact in her motion to strike the affidavit of Kotas, but instead treats the matter with her ever present silence when the true fact is shown to the detriment of her cause of action.”

*330This defense is truly an extraordinary one, and in our opinion is unsupported either by reason or authority. The theory advanced is that Kotas can clear himself of any liability for wrongfully getting from the plaintiff $6,000 if he had falsely told her that the $6,000 was included in the price of the property and it would be necessary for her to obligate herself for such amount in order to acquire the property and she had consented so to do. It is just as logical to say that an entrepreneur selling a sham gold brick to an innocent from the hinterlands can defend himself by saying that he never asked any greater price than was agreed to be paid to him by the victim. There is nothing in the affidavit that negates the factual allegations in the complaint establishing an agency and a fiduciary relationship. The only defense set up is the one to which we have just referred. That is no defense. The plaintiff was also entitled to an explanation of the disposition of the money obtained from her by Kotas, as well as an accounting from Kotas as to expenditures which he allegedly made. The court erred in entering judgment in favor of Kotas.

A summary judgment was also entered by the court in favor of Dvorak. In plaintiff’s amended complaint she alleges that he is an attorney and during the period complained of was the attorney for General; that he was a business associate of defendant Kotas; and that Dvorak claimed ownership of the $6,000 second mortgage note involved. She further alleges that Dvorak gave to her no consideration whatsoever for the mortgage, nor did he give any consideration to any person to whom she was indebted in the amount of $6,000; that Dvorak issued his check in the amount of $2,850 payable to Pinkert, who credited the sum of $634.21 to plaintiff’s “Loan Progress Account”; that no other sum was credited to her; that she did *331not know of such, payment and no demand was made upon her for such payment; and that in case a demand had been made upon her she had sufficient funds in her possession to satisfy such demand. The plaintiff also alleges that she received no part of the $2,850; that she made payments on the $6,000 mortgage at the office of General totaling $1,715, all of which amount was credited to the account of Dvorak; that in addition thereto the sum of $3,750 was paid to Dvorak out of the proceeds of the loan from Victory, which sum was paid to him at the instruction of Kotas without authorization from her; that at all times Dvorak concealed from plaintiff ownership hy him of the said second mortgage; and that the said mortgage was the secret profit of one or more of the defendants. She also alleged that Dvorak’s acts were in violation of a confidential and fiduciary relationship.

Dvorak’s motion for summary judgment was supported hy the affidavit of his attorney. In the affidavit it was stated that plaintiff had testified in her deposition that prior to the filing of the suit she had never met Dvorak and at the time of signing the original contract of purchase she was willing to buy the property for $20,000, and that Dvorak had at no time represented to her that he would respect their confidential and fiduciary relationship. The affidavit further sets out that in the hearing, upon interrogation by the court, she stated that she knew at the time of purchase that the price was to he $20,000. The court in his judgment order states that the amended complaint does not state a cause of action against Dvorak and that plaintiff’s admissions conclusively negative the existence of any liability of Dvorak to the plaintiff.

The plaintiff’s complaint with respect to Dvorak could have been drawn with greater clarity and *332definiteness. Certain allegations in the complaint relating to a fiduciary relationship existing between them were negatived by admissions she made in her deposition. Among other allegations of the complaint which remain uncontradicted are allegations that Dvorak gave no consideration to the plaintiff nor to any person to whom she was indebted in the amount of $6,000; that she made payments to Dvorak amounting to $5,465 ($1,715 at the office of General, which entire sum was credited to the account of Dvorak, and $3,750 from the proceeds of the loan from Victory, which sum was paid to him at the instruction of Kotas without her authorization); and that the $6,000 mortgage was the secret profit of one or more of the defendants.

Prior to the entry of the summary judgments and prior to the dismissal of Pinkert from the case, defendants Pinkert and Dvorak had filed sworn answers to interrogatories propounded by plaintiff. Prom the interrogatories it appears that the second mortgage was dated August 8, 1953. The first mortgage to General was dated August 7, 1953, and it is worthy of note that that mortgage was notarized by Ruth King, the nominee in the second mortgage. The deed was also dated August 7th, which was the approximate date of closing the deal. It does not appear from the record who had the initial possession of the $6,000 mortgage. Either Dvorak had it or he later obtained it from a person or persons unascertainable from the record. There is no explanation in the record concerning with whom or how the final price of $2,850 was negotiated.

The affidavit of Dvorak’s attorney, filed in support of the motion for summary judgment, together with the admissions made by the plaintiff in her deposition, does negate the allegation that there was a fiduciary relationship between Dvorak and *333the plaintiff. However, if one accepts the fruits of fraud knowing of the means by which they were obtained he is liable even though he did not personally participate in the fraud. 37 C. J. S., Fraud, sec. 61b; Beidler v. Crane, 135 Ill. 92, 25 N. E. 655; Callner v. Greenberg, 376 Ill. 212, 33 N.E.2d 437; Majewski v. Gallina, 17 Ill.2d 92, 160 N.E.2d 783. In the latter case the court says: “Moreover, it is of no consequence whether the conveyance was to the fiduciary or to another. The principle is set forth in Lord Eldon’s statement, quoted in the Addis case [Addis v. Grange, 358 Ill. 127] at page 134: ‘Let the hand receiving it be ever so chaste, yet if it comes through a corrupt channel the obligation of restitution will follow it.’ ”

From the record at the time the summary judgments were entered, if we consider the uncontradieted facts, a fiduciary relationship existed between plaintiff and Kotas, and by means and through the abuse of that fiduciary relationship without consideration a mortgage for $6,000 was obtained on the premises of the plaintiff and on account of such mortgage some $5,465 was paid to Dvorak. Dvorak, in his answers to the interrogatories, makes .statements which, standing alone and without explanation, seem incredible, the statements being that he did not know who the owner of the second mortgage was on August 8th; that he acquired the mortgage on or about August 18th; that he did not know from whom he purchased it; and that he paid the sum of $2,850 for the mortgage, which payment was made by check on which Harold A. Pinkert was the payee. He further states that he has known Kotas approximately ten or twelve years and that he purchased from Kotas only one second mortgage secured by the property in question. Pinkert, in his answers, states that he never was the owner of the second mortgage; that he cashed the $2,850 check *334at General and the real owner of the $2,850 was Dvorak; and that he received for Dvorak the second mortgage note and trust deed.

From the record this court can only assume that the $6,000 mortgage fell like the gentle rain from heaven upon the closing table at General. There is no admission that Kotas received the $2,850. There is nothing in the record that indicates that the plaintiff knew that $634.21 was to be credited to her account at General or that there was any reason for so crediting the money to her account there.

The uncontradicted facts are that Dvorak received some $5,465 from the plaintiff for the mortgage, and Dvorak states in his answers to the interrogatories that he paid the sum of $2,850 for the mortgage by a check made payable to Pinkert. Pinkert says that all he did was cash the check and that the real owner of the $2,850 was Dvorak. He further states that he received for Dvorak the second mortgage note and trust deed, but he does not state from whom. Dvorak’s check in payment of the mortgage was dated August 7th. Dvorak has stated that on August 8th he did not know who the owner of the mortgage was and that the mortgage was acquired by him on August 18th but he does not know from whom he purchased it. It seems incredible that if the check was dated on August 7th there would not have been some negotiation with the owner of the mortgage prior to that time to indicate the amount for which the mortgage could be obtained. No explanation has been offered as to why the owner of the mortgage, if he acquired it for $6,000, would be willing to sell the mortgage to Dvorak for $2,850 at or about the same time he acquired it. The transaction, to say the least, seems to be unusual in its entirety. There is sufficient in the record to raise a strong imputation of Dvorak’s knowledge of Kotas’ conduct concerning the plaintiff *335and the mortgage. If on a trial the allegations are substantiated, and if it is proved that Dvorak had knowledge thereof he is liable for the money paid to bim on account of the mortgage. The plaintiff gave defendants money. That fact is established by all the evidence. As was said in Gliwa v. Washington Polish Loan & Bldg. Ass’n, 310 Ill. App. 465, 34 N.E.2d 736, at p. 479:

“Defendant undertakes to interpose merely technical defenses .... Defendant’s affidavits leave any meritorious defense it may have a matter of mystery. . . . For some reason it fails to set forth the facts from which that ultimate question could be determined. . . . The facts should have been set up. This was not done. Defendant’s affidavits . . . leave its defense a matter of mystery and conjecture.”

The affidavit filed in support of Dvorak’s motion for summary judgment was not sufficient to show that the plaintiff would be unable to prove her case against him.

We are not passing on the facts in the case, which must be determined in a trial. Our consideration of the facts has been limited to a determination of the propriety of entering summary judgments, and it is our holding that upon the record before us the summary judgments should not have been entered.

The judgments are reversed and the cause remanded with directions to deny defendants’ motions for summary judgment, to require the defendants to answer the complaint, and for further proceedings consistent with the views expressed herein.

Reversed and remanded with directions.

SCHWARTZ, P. J. and DEMPSEY, J., concur.

OPINION

WILL, District Judge.

Plaintiffs, suing as a class, seek relief with respect to contracts for the sale of used residential property in the City of Chicago. Their complaint contains five counts. The first alleges violation of the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, 1982, 1983, 1985(3), and of the Thirteenth and Fourteenth Amendments of the Constitution of the United States. Counts two and three allege, respectively, violations of the federal antitrust laws and of the antitrust laws of the State of Illinois. Count four of the complaint alleges violation of the federal securities laws. Count five alleges violation of the Illinois common law regarding fraud, usury and unconscionable contracts.

This Court has previously determined that under Rule 23 of the Federal Rules of Civil Procedure, plaintiffs can maintain this action as a class action; and the Court has defined the plaintiff class, subject to future revision and refinement, to be composed of negroes who, since January 1, 1952, have entered into installment contracts for the purchase of used residential real estate in the City of Chicago.1 The determination that a class action is appropriate was based on the recognition that the common ques*214tions of law and fact “predominate” over the individual questions. The essence of this complaint is that violations of law resulted from defendants’ concerted exploitation of a condition of de facto racial segregation existing in the City of Chicago. Thus, the Court found that common questions of law and fact “predominate” within the terms of Rule 23 because it is alleged that the illegal advantage secured under any one contract depended on, was complemented by, and resulted from a concert and pattern of discriminatory activity including other similar contracts.

The Motions to Dismiss

By way of motions to dismiss each and every count of the complaint, defendants have now challenged the sufficiency of the allegations.

Before proceeding with the required determination, it should be noted at the outset that when considering a motion to dismiss, a district court must consider all the allegations of fact contained in the complaint and it is uniformly recognized that when a court is making this determination, the complaint must be liberally construed.2

Count I — The Civil Rights Act of 1866, and the Thirteenth and Fourteenth Amendments

The First count of the complaint relates essentially to the allegations, here taken as admitted for purposes of the motions to dismiss, that defendants exploited a system of de facto racial segregation that existed in the City of Chicago, and that by taking advantage of the scarcity of housing for negroes in the City of Chicago, defendants have secured unlawful advantage in the contracts executed by plaintiffs. As described in the complaint, the scheme of exploitation often included obtaining purchase money mortgages based on false and excessive appraisals of used residential property. The essence of the scheme is alleged to have been the purchase of residential properties from white homeowners and the resale, often in the nature of quick “turn-around” transactions, at greatly inflated prices to negro purchasers, who were disadvantaged by the system of de facto segregation and the resulting shortage of housing for negroes in Chicago. The terms of the contracts, especially the price, are alleged to represent unlawful profit gained through this pattern of exploitation.

The complaint also alleges in Count I a separate aspect of discriminatory activity. It alleges that some defendants amplified and fostered the de facto segregation on which the contracts depended. The complaint asserts that some of the defendants engaged in what is popularly known as “blockbusting,” that some of the defendants stimulated and preyed on racial bigotry and fear by initiating and encouraging rumors that negroes were about to move into a given area, that all non-negroes would leave, and that the market values of properties would descend to “panic prices” with residence in the area becoming undesirable and unsafe for non-negroes. The complaint thus charges not only that defendants exploited the existing condition of de facto segregation, but that by prompting and encouraging a stampede of white sellers, some defendants extended and developed the underlying in*215equity of segregation that was the breeding ground for their discriminatory profit.

Section 1982 of the Civil Rights Act of 1866 provides that:

All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), the Supreme Court of the United States declared the constitutionality and determined the scope of Section 1982. Beginning its opinion with the sum and substance of its determination, the Court stated,

We hold that § 1982 bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment. Id. at 413, 88 S.Ct. at 2189.

The manner of discrimination specifically involved in Jones was the refusal to sell a home to an individual solely on the ground of the individual’s race. In the instant case, the discrimination alleged is the sale of used residential property to negroes at higher prices and on more burdensome terms than similar property is sold to whites. Defendants contend that this difference in fact is a difference in kind under the law, that the Supreme Court’s conclusion as to the import of Section 1982 is therefore not applicable to this case.

But the language and logic of Jones and the constitutional application that the Supreme Court regarded as the source of the Civil Rights Act of 1866 must be equally applicable to the discrimination alleged in this case. The Court found that the legislative history of the 1866 Act demonstrated the Congressional intent to ensure that the former slaves could participate fully in a national economy. It was the Court’s conclusion that the existence of a black market distinct from a white market was the de facto vestige of what the Congress in 1866 intended to abolish as a critical means of making the black man a free man. The conviction recognized was that the obliteration of the social system where one man was the slave of another required as a fundamental matter that our economy be undifferentiated as to the race of a man. The Court thus understood Section 1982 as implementing the Thirteenth Amendment “to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man.” Id. at 443, 88 S.Ct. at 2205.

The Court did point out that § 1982 was limited to activity directly covered by the express terms of the Section. The Court thus stated, “at the outset, it is important to make clear precisely what this case does not involve,” and went on to say that § 1982 “does not deal specifically with discrimination in the provision of services or facilities in connection with the sale or rental of a dwelling. * * * It does not refer explicitly to discrimination in financing arrangements or in the provision of brokerage services.” Id. at 413, 88 S.Ct. at 2189. Of course, the alleged blockbusting and discriminatory lending in the instant case do not fall within the express terms of § 1982. However, the basic claim in this lawsuit clearly does. The basic activity is the purchase of of property. Blockbusting and discriminatory lending are alleged to be additional activities, part and parcel of the alleged conspiracy, which extended the scope and impact of the allegedly discriminatory sale and purchase.

Defendants in terrorem point to what they suppose to be the incredible consequences of a holding that Section 1982 bars the sale of residential property to negroes at a higher price because of their race. Defendants contend that this holding would mean that “every nonwhite citizen has a cause of action maintainable in Federal Court to either rescind or reform each and every transac*216tion involving a purchase or leasing of either real or personal property by the simple allegation that he was charged more than a white person would have been charged or that he received less favorable terms and conditions than would have been given to a white person.”

For purposes of a motion to dismiss, and considering that any such allegation would! be subject, as any allegation, to the test of proof on trial, defendants are correct. Moreover, the converse is also true. Every white citizen may allege a cause of action on; the ground that he was charged more or received less favorable terms than would have been given to a black person. The Supreme Court noted that the defendant in Jones similarly pointed to “the revolutionary implications of so literal a reading of § 1982.” Id. at 422, 88 S.Ct. at 2194. The Supreme Court responded by stating, “our examination of the relevant history, however, persuades us that Congress meant exactly what it said.” Id. at 422, 88 S.Ct. at 2194.

What was true in Jones is true here also — that defendants call “revolutionary” what is simply a denial of their assumption that there is a necessary sanctity in the status quo. Defendants present the discredited claim that it is necessarily right for a businessman to secure profit wherever profit is available, arguing specifically with respect to this case that they did not create the system of de facto segregation which was the condition for the alleged discriminatory profit. But the law in the United States has grown to define certain economic bounds and ethical limits of business enterprise. Developed areas of the law such as are invoked under the fraud and antitrust counts of this complaint are characteristic examples. So we are hearing an old and obsolete lament. For it is now understood that under § 1982 as interpreted in Jones v. Alfred H. Mayer Co. there cannot in this country be markets or profits based on the color of a man’s skin.

Defendants also suggest that this case cannot involve “actual” discrimination, but only “hypothetical” discrimination. Their notion is that because the complaint does not state that defendants ever made sales of similar property to whites as they sold to plaintiffs, the possibility of discrimination somehow disappears.

We first point out what should be obvious — that allegations are not “hypotheticals.” The claim that defendants sold to negroes at a higher price than similar property would be sold to whites will be subject to proof on trial. Second, and most important, defendants’ position elaborated is that if property is sold to a negro above what can be demonstrated to be the usual market price, there can be no discrimination unless the same seller actually sells to whites at a lower price. It should be clear that in law this result would be obnoxious. In logic, it is ridiculous. It would mean that the 1866 Civil Rights Act, which was created to be an instrument for the abolition of discrimination, allows an injustice so long as it is visited exclusively on negroes.

In sum, then, there is no reason to distinguish a refusal to sell on the ground of race and a sale on discriminatory prices and terms. Count I of this complaint states a claim under Section 1982 of the Civil Rights Act of 1866 as understood in Jones v. Alfred H. Mayer Co., and the motions to dismiss must be denied with respect to Count I of the complaint. Because the motion is thus denied, we need not reach the question of whether the complaint states a claim under the other grounds asserted in Count I.

Count II — The Federal Antitrust Laws

In Count II of the complaint, plaintiffs allege that defendants have violated Section 1 of the Sherman Act, 15 U.S.C. § 1, through the pattern of activity alleged in Count I; and plaintiffs add allegations that there has been continuing action and agreement by defendants and their co-conspirators to fix the prices on the sale of real estate to plaintiffs at *217approximately $5,000 to $15,000 per unit above the fair market value of each unit. The particularization of the antitrust violation also includes allegations that defendants and their co-conspirators arranged the elimination of price competition in the sale and financing of real estate properties and in the discounting of installment contracts entered into by plaintiffs.

There is no question, and defendants do not dispute, that the activities alleged can violate the antitrust laws if the scope of such activities is sufficient to bring them within the ambit of federal regulation. The only substantial issue raised by the motion to dismiss Count II of the complaint is, therefore, whether the combination and conspiracy complained of is alleged to be “in restraint of interstate commerce” as the nature-of interstate restraint has been understood in the application of the federal antitrust laws.

It is established under the decided cases that, depending upon the particular circumstances, a business activity conducted solely intrastate may result in an interstate restraint that is violative of the federal antitrust laws. The Supreme Court recognized this manner of violation in Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 68 S.Ct. 996, 92 L.Ed. 1328 (1948) where the Court generalized the test to be applied, stating,

For, given a restraint of the type forbidden by the Act, though arising in the course of intrastate or local activities, and a showing of actual or threatened effect upon interstate commerce, the vital question becomes whether the effect is sufficiently substantial and adverse to Congress’ paramount policy declared in the Act’s terms to constitute a forbidden consequence. If so, the restraint must fall, and the injuries it inflicts upon others become remediable under the Act’s prescribed methods, including the treble damage provision. Id. at 234, 68 S.Ct. at 1005.

Or again, in United States v. Women’s Sportswear Manufacturers Ass’n, 336 U.S. 460, 69 S.Ct. 714, 93 L.Ed. 805 (1949), the Court said,

The source of the restraint may be intrastate, as the making of a contract or combination usually is; the application of the restraint may be intrastate, as it often is; but neither matters if the necessary effect is to stifle or restrain commerce among the states. If it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze. Id. at 464, 69 S.Ct. at 716.

A substantial body of precedent now describes the various circumstances where the effect of local activity on interstate commerce is sufficient to be violative of the federal antitrust laws. See, e.g., United States v. Employing Plasterers’ Association, 347 U.S. 186, 74 S.Ct. 452, 456, 98 L.Ed. 618 (1954); Las Vegas Merchant Plumbers Ass’n v. United States, 210 F.2d 732 (9th Cir. 1954); United States v. Chrysler Corp. Parts Wholesalers, 180 F.2d 557 (9th Cir. 1950); United States v. Detroit Sheet Metal & Roofing Contractors Ass’n, 116 F.Supp. 81 (E.D.Mich.1953).

In this Count of the complaint, plaintiffs state a number of respects in which they suggest that the activities of defendants and their co-conspirators adversely affected interstate commerce. While the relation asserted is general, under the liberal construction of allegations being challenged by a motion to dismiss, plaintiffs have alleged the necessary interstate effect.

Some of the more substantial of the allegations establishing the requisite effect are that the installment contracts are significantly related to an interstate market for the discount and sale of installment contracts, and that the alleged improper financing of these properties would affect the interstate market for such financing. Also of note is the alleged background of de facto segregation and the existence of a limited supply of housing for negroes, indeed, a separate market for the negro buyer. In view of this background and *218plaintiffs’ allegations that negroes have decided whether or not to move to Chicago on the basis of the prices of real estate in Chicago, there is reasonable possibility that the alleged fixing of prices of Chicago real estate could substantially affect the buying and selling of real estate in areas outside Illinois — as for instance in the proximate areas of Indiana. Thus, as is here indicated, the alleged interstate effects are not absurd nor patently false. Accordingly, the motions to dismiss Count II of the complaint must be denied.

Count III — The Illinois Antitrust Laws

In view of the conclusion that this complaint states a federal claim, it is clear that this Court has pendant jurisdiction to hear the cause alleged under the antitrust laws of the State of Illinois, specifically Chapter 38, Section 60-3(1) (a), Illinois Revised Statutes, 1967. That a cause is stated is apparent through a comparison of the allegation of price-fixing and the specific language of the statute invoked.3 And the pendant jurisdiction of this Court is equally clear. The principle that a federal court may retain jurisdiction of a state cause depending on its relation to the federal cause alleged in the same suit was clarified by the Supreme Court of the United States in United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). The Court held that “[t]he state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.” Id. at 725, 86 S.Ct. at 1138. The court went on to emphasize the discretionary character of the power and that the federal court should look to “considerations of judicial economy, convenience and fairness to litigants.” Id. at 726, 86 S.Ct. at 1139. The similarity of the federal and state causes of action included in this complaint is readily apparent and leaves no doubt that pendant jurisdiction is appropriate.

THE STATUTES OF LIMITATION

Defendants assert, as part of their motions to dismiss, that statutes of limitation relevant to the various counts of the complaint bar relief with respect to many of the installment contracts presently included in this litigation under the Court’s initial delineation of the plaintiff class. Plaintiffs’ immediate response is to question the propriety of raising the issue of limitations by way of a motion to dismiss. Plaintiffs contend that the defense of limitations must instead be stated in defendants’ answers to the complaint.

It is correct that some federal courts have found that the lack of detail in notice pleading renders improper the raising of limitations questions by motion to dismiss.4 But the established rule in this Circuit is that where the complaint is definite enough to support consideration of a question of limitations, the question can be raised under Rule 9(f) of the Federal Rules of Civil Procedure by a motion to dismiss the complaint.5 The instant complaint, it *219should be noted, does present sufficient background for immediate determination of the limitations question. Moreover, considering the scope of the present litigation and the consequent magnitude of the discovery to be undertaken, it is particularly desirable that there be expeditious definition of the exact limits of the litigation in order to avoid unnecessary complexity and expense.

In posing the bar of statutes of limitation, defendants rely primarily on the opinion of the Seventh Circuit Court of Appeals in Baldwin v. Loew’s Incorporated, 312 F.2d 387 (7th Cir. 1963). Defendants draw the conclusion that Baldwin requires this Court to look to the dates of execution of the various contracts as the last point in time when the action with respect to any particular contract could have accrued. Defendants thereby insist that there can be no relief with respect to any contract that was executed earlier than the limitations period, even if payments were made at a later time still within the applicable period, are still being made, or are required under the contracts to be made for many years to come.

We of course agree that Baldwin states the rule in this Circuit in comparable cases. But defendants have seriously misunderstood how the facts in Baldwin relate to the principle stated and to the underlying rationale of statutory provisions for the limitation of actions.

Baldwin was a civil antitrust action brought by the owners of a movie theatre. The plaintiffs sought treble damages, charging a conspiracy of defendants, who included the major motion picture film distributors in the United States. It was alleged that “defendants were engaged m a continuing conspiracy in the licensing of film, in order to favor their own operated circuits of theatres and the circuits of theatres of others and to suppress the competition of independent theatre operators.” 312 F.2d at 389. It was alleged that because of the conspiracy, plaintiffs were forced to lease their theatre to one of these non-defendant “other” chain operators on terms far inferior to what plaintiffs would have obtained absent the unlawful conspiracy.

The lease in Baldwin was executed in 1945 for a five-year term, with successive options granted to the lessee to renew at five-year intervals until 1965. The lessee had exercised its option and renewed the lease in 1950 and 1955. The suit was filed in 1953, and the court was applying a two-year statute of limitations. In concluding that the action was barred by the two-year statute, the Court distilled its determination as follows:

Where one has been injured by a civil conspiracy a statute of limitations begins to run at the time that injury is inflicted. In this case that date was when the lease was executed between plaintiffs and the lessee in 1945. Id. at 390.

******

The exercise in 1955 of an option to extend the lease of 1945, the year in which “the blow which caused the damage was struck”, was relevant only as an element of damages. It was not an overt act from which the running of the statute of limitations may be computed. Id. at 391.

It is indisputable that on the facts alleged in Baldwin the defendants in Baldwin struck their blow and inflicted injury at the time of the execution of *220the lease. And on the facts alleged, this was the only time at which the conspiracy acted or could have acted to cause the injury and secure the unlawful benefit. The defendants in Baldwin were not parties to the lease. Conversely, the lessee was not a defendant. The defendants were not enforcing the lease and no payments were being made to them. The allegations in the instant complaint, by contrast, place defendants in a fundamentally different posture vis a vis the infliction of harm and exaction of unlawful benefit.6 Defendants here are alleged to have been reaping unlawful benefits through continuing enforcement of their unlawful scheme. Indeed, the best indication of what would be the continuing infliction of injury are the efforts to collect on the contracts which have brought plaintiffs repeatedly to this Court to seek relief from state actions instituted to evict them from the homes they contracted to purchase.

The Court said in Baldwin, “[t]he exercise in 1955 of an option * * * was relevant only as an element of damages,” because the lessee exercised the option — not the defendants. The defendants had long before locked the plaintiff theatre into the unfavorable arrangement, and the defendants were not alleged to have done anything after the date of execution of the lease which could have constituted the infliction of harm that the Court rightly regarded as crucial.7

Basic to defendants’ misunderstanding of Baldwin’s validity and relation to the instant case is the failure to keep in mind the purpose served by statutes of limitation. And defendants’ error is common to some of the cases where analysis is similarly lost in the meta-*221physic of “essential” act or injury, the effort solely to determine when the “real” injury took place. Statutes of limitation do not properly depend on Platonic essences. The very practical and positive purpose served by these statutes is to ensure that stale claims will not be decided and the processes of justice thereby debilitated with attendant problems such as loss of evidence.8 When this case is regarded in this light it is clear that the applicable statutes of limitation do not bar claims with respect to contracts not terminated before the running of the limitations periods. And regarded in this light, most of the very cases cited by defendants support this result.9 In the critical sense intended under the statutes, the claims alleged in this case are obviously not stale. The circumstances of unlawfulness are alleged to be as present and vital today as at any time during the contract arrangements.

This immediacy of the alleged injury goes beyond the continuing collection of allegedly unlawful profit and enforcement of the contracts. It has been determined that the first count of this complaint states a claim for violation of the Civil Rights Act of 1866. Only the most parochial view of the Civil Rights Act would identify its ultimate intention to be simply the restoration of any monetary loss suffered on account of race. The abolition of slavery was to be a redemption of human dignity. The indignity alleged to have been suffered in this case cannot be confined to the dates of execution of the various contracts, but can be understood only in relation to the continuing activity whereby the alleged indignity continues to be inflicted and exploited. Thus, even if the rule in this Circuit were, contrary to Baldwin, that whatever the relation of the parties, continuing exactions under an allegedly unlawful contract could only constitute the accretion of “damage” and not “injury”, this could not with reason be the rule in the special situation of a contract allegedly executed in violation of a person’s civil rights. •

It remains to determine which statutes of limitations are applicable in this case. The antitrust laws specifically include their own provisions for the limitation of actions. Consequently, there is no question as to which individual claims are barred with respect to Counts II and III of the complaint. The 1866 Civil Rights Act, however, which is the foundation for the cause of action stated in Count I of the complaint, does not contain any limitations provisions. Focusing this absence, plaintiffs argue that this court has great discretion to exercise its equitable powers to decide which, if any, individual claims under the Civil Rights Act should be barred. Plaintiffs also argue alternatively that the limitations period of 10 years provided in Chapter 83, Section 17, Illinois Revised Statutes, 1967, or the 40 year statute of limitations provided in Chapter 83, Section 12.1, should be applied with respect to the cause of action stated in Count I of the complaint.

Where a federal statute does not stipulate a limitations period, the general practice in the federal courts is to apply the appropriate state statute. This is generally understood to be the statute that the forum state “would enforce had an action seeking similar relief been brought in a court of that state.” Swan v. Board of Higher Education, 319 F.2d 56, 59 (2 Cir. 1963). See, also, International Union, United Automobile, Aerospace and Agricultural Workers v. Hoo*222sier Cardinal Corp., 383 U.S. 696, 703-705, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966); O’Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914). Indeed, before a provision of limitations was added by Congress to the federal antitrust laws, the rule in this Circuit was that the Illinois statute for similar state actions should be applied. Schiffman Bros. v. Texas Co., 196 F.2d 695 (7th Cir. 1952). And consistent with the general rule, the federal courts have uniformly applied state limitations provisions to claims stated under the Civil Rights Act, 42 U.S.C. §§ 1981-1985. See, e. g., O’Sullivan v. Felix, supra; Hileman v. Enable, 391 F.2d 596, 597 (3rd Cir. 1968); Beard v. Stephens, 372 F.2d 685, 688 (5th Cir. 1967); Swan v. Board of Higher Education, 319 F.2d 56, 59 (2 Cir. 1963); Smith v. Cremins, 308 F.2d 187, 189, 98 A.L.R.2d 1154 (9th Cir. 1962); Crawford v. Zeitler, 326 F.2d 119, 121 (6th Cir. 1964); Wakat v. Harlib, 253 F.2d 59 (7th Cir. 1958).

In Wakat v. Harlib the Seventh Circuit Court of Appeals effectively held the statute of limitations applicable to the claim stated in Count I of the instant complaint. In Wakat the plaintiffs alleged “violations of the federal civil rights act, 42 U.S.C.A. § 1981 et seq,” particularly § 1983 and § 1985. The Court of Appeals held that the appropriate Illinois statute of limitations for the action under the Civil Rights Act was Chapter 83, Section 16, 1967 Illinois Revised Statutes (Section 15 of the Limitations Act) which provides a five-year period of limitations.10 The Court understood the five-year provision to be expressly applicable to actions under the federal Civil Rights Act in that “a statutory right of action is a ‘civil action not otherwise provided for’ within the meaning of § 15 of the limitation act.” 253 F.2d at 63.

Contrary to what appears as the obvious meaning of Wakat, plaintiffs argue that the Court of Appeals did not regard the applicability of the five-year statute as a general rule in this Circuit, but rather, that the Court was simply exercising its discretion to allow the particular action asserted in that case. Plaintiffs urge this Court to apply the equitable doctrine of laches to determine the period during which plaintiffs in this case were required to pursue any relief under the Civil Rights Act.

The requested exercise of equitable discretion is precluded by the Court’s judgment in Wakat that an express rule of law determines the limitations period for the 1866 Civil Rights Act. The Court declared with respect to Section 1985 of the Act,

Count I relies expressly upon 42 U.S.C.A. § 1985 which creates a statutory right of action growing out of a conspiracy to impede, hinder, obstruct, or defeat the due course of justice in any state, with the intent therein set forth. This cause of action was created by statute. It is not one of the actions enumerated in § 14. However the Illinois limitations act, § 15, does cover all civil actions not otherwise provided for by that act and therefore the failure to include an action under § 1985 aforesaid within § 14 does not mean that Illinois has no limitation act to bar such an action. Id. at 63.

In view of this analysis, there is no reason to distinguish Section 1985 from the other sections of the Civil Rights Act of 1866, and the Court’s discussion thus makes it clear that the relation of the five-year statute to relief under the Civil Rights Act was to be understood as a general rule. Moreover, while plaintiffs cite no cases which directly support their suggested theory of equitable discretion *223in this matter, their theory was specifically rejected by the Second Circuit Court of Appeals in Swan v. Board of Higher Education, 319 F.2d 56 (2d Cir. 1963). There the Court reflected,

Although plaintiff has not raised the point, we have considered whether, because his complaint seeks not damages but rather declaratory and injunctive relief, it should be considered solely “equitable” and hence as governed not by a statute of limitations but rather by the doctrine of laches. See, e. g., Holmberg v. Armbrecht, 327 U.S. 392, 395-396, 66 S.Ct. 582, 90 L.Ed. 743 (1946). We have concluded, however, that since plaintiff could also have sought Civil Rights Act relief by way of damages, he is not here asserting “a federal right for which the sole remedy is in equity,” Holmberg v. Armbrecht, 327 U.S. at 395, 66 S.Ct. at 584, and hence the situation is one of “concurrent” legal and equitable jurisdiction, in which case the statute of limitations does apply. Compare Holmberg v. Armbrecht, supra, and Russell v. Todd, 309 U.S. 280, 60 S.Ct. 527, 84 L.Ed. 754 (1940), with Cope v. Anderson, 331 U.S. 461, 67 S.Ct. 1340, 91 L.Ed. 1602 (1947). Id. at 59-60, n. 5.

Plaintiffs’ contention that either a 40 year or a 10 year statute of limitations is applicable to Count I involves the same disregard of the specific instruction in Wakat as plaintiffs’ urging of the exercise of equitable discretion. Plaintiffs apparently proceed on the theory that where an action under the Civil Rights Act involves contracts, a federal court must apply the forum state’s period of limitations applicable to contract actions, which in this case is asserted to be the Illinois ten-year provision, Ch. 83, § 17, Illinois Revised Statutes; or that where the civil rights action involves real estate, state limitations specifically relating to real estate are applicable, which in this case is asserted to be the 40 year period provided in Ch. 83, § 12.1, Illinois Revised Statutes, 1967. But this position is essentially no different from the contention advanced in Wakat that because the alleged violations of the Civil Rights Act were in the nature of false imprisonment, the statute of limitations applicable to the civil rights action was the two-year statutory period for the tort of false imprisonment, Section 14 of the Limitations Act, Ch. 83 § 15, Illinois Revised Statutes, 1967. As is clear from the holding in the Wakat opinion quoted above,11 the Court rejected the notion that Section 14 of the Limitations Act was in any sense related to an action under the Civil Rights Act. The Court stated that to the contrary it found the civil rights action to be “an action not otherwise provided for” and thereby covered by the five-year provision that is Section 15 of the Limitations Act. Thus the Court in Wakat understood an action under the Civil Rights Act to be independent of the limitations provided for specific causes of action which might be suggested by the allegations that constitute a claim under the Civil Rights Act. It is clear, therefore, that neither the 10 year period relating to contracts, nor the 40 year period relating to transactions in real estate, is applicable to Count I of this complaint. The rather obvious instruction of the Seventh Circuit Court of Appeals in Wakat v. Harlib is that the five-year period provided in Chapter 83, Section 16, Minios Revised Statutes, must be applied to bar contracts terminated more than five years before the filing of this lawsuit.

It follows from the foregoing that the plaintiff class as previously defined must be redefined so as to eliminate therefrom all negro purchasers of residential real estate under land contracts from the named sellers whose contracts terminated prior to January 6, 1964.

' Count IV — The Federal Securities Laws

Seeking to establish a cause of action under Section 27 of the Securities and Exchange Act of 1934, plaintiffs reassert the allegations included in the other *224counts but attempt to describe the alleged activity as the selling of securities by false and misleading solicitation through interstate commerce. That is, plaintiffs maintain that the installment contracts are “securities” as that term is properly understood under the federal securities laws.

But however imaginatively the allegations in this count have been phrased with respect to the federal securities laws, the installment contracts are not securities under the decided cases. And this is clear even under the most general statements of the criteria for determining when a transaction involves a “security”. For one key example, the Supreme Court stated in S. E. C. v. W. J. Howey Co., 328 U.S. 293, 301, 66 S.Ct. 1100, 90 L.Ed. 1244 and recently repeated in Tcherepnin v. Knight, 389 U.S. 332, 338, 88 S.Ct. 548, 554, 19 L.Ed.2d 564 (1967), that “[t]he test (for an investment contract) is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others.” Similarly instructive is the comment by Professor Loss, widely recognized in the cases, that

The line is drawn, however, where neither the element of a common enterprise nor the element of reliance on the efforts of another is present. For example, no “investment contract” is involved when a person invests in real estate, with the hope perhaps of earning a profit as the result of a general increase in values concurrent with the development of the neighborhood, as long as he does not do so as part of an enterprise whereby it is expressly or impliedly understood that the property will be developed or operated by others. 1 Loss, Securities Regulation, 491-2 (2d ed., 1961).

Plaintiffs point to the executory nature of these contracts, to the facts that both plaintiffs and defendants had interests they could sell to third persons, and to the fact that plaintiffs were entitled on full compliance with their contracts to receive property of appreciated value. They also insist that both plaintiffs and defendants could have expected to profit from efforts to maintain the properties.

But still, incontrovertibly, the allegations in the complaint establish that plaintiffs, at the time of purchase, intended to acquire personal residences. To conclude that the natural desire of any purchaser that his purchase should appreciate in value makes a “security” of what has been purchased, is obviously to so muddle the term as to make it meaningless. The properties purchased were subject to plaintiffs’ control. And even if defendants are considered to have been engaged in a “common enterprise”, an essential allegation of the complaint is that it was defendants alone who sought to profit from any scheme, while plaintiffs, who only intended to purchase personal residences, were their innocent victims. In other words, the transactions cannot be likened to an investment in securities without complete confusion of the alleged relation of the parties to this litigation.

That a cause of action is not stated under the federal securities laws is also shown by the insufficiency of the complaint in its allegations of false representation or concealment of a material fact or device, scheme or artifice to defraud under Section 17(a) of the Securities and Exchange Act of 1934. For instance, plaintiffs allege that defendants concealed appraisals obtained from their mortgage lenders as well as the prices paid to former white owners of the properties. But the usual practice in real estate dealings is not to volunteer this information. Or again, plaintiffs allege that defendants were guilty of misrepresentation of the values of the properties they sold to plaintiffs. But as to this alleged misrepresentation of value, plaintiffs specify nothing beyond what is considered in the law to be mere “puffing” by a seller, and in no degree fraudulent conduct. Thus, conduct here asserted to be in violation of the federal antitrust laws is recognized in other areas of the law as the *225usual and legitimate practice in the buying and selling of real estate. And what is true of the particular allegations just mentioned illustrates in general the misplacement of the securities concept in this case.

Finally, it would be a gross and unsupported enlargement of the presently exercised jurisdiction and responsibility of the Securities and Exchange Commission to hold that the common sale of residential real estate by installment contract is subject to the federal securities laws. Indeed, plaintiffs indicate their recognition of this by stating in their brief that “the federal law should be interpreted to protect purchasers such as plaintiffs in the case at bar because “the type of interests reposed in plaintiffs and defendants as a result of the sale of installment contracts are not sufficiently regulated under Illinois law * * In asking the Court to be so creative, plaintiffs acknowledge that the federal and state securities and fraud laws as presently stated and understood do not provide the requested protection. Accordingly, the motions to dismiss Count IV of the complaint must be granted.

Count V — Uneonseionability, Fraud, Usury and Breach of Implied Warranties

In support of the claim of fraud asserted in Count V of the complaint, plaintiffs allege that defendants concealed the prices paid to the former white owners of the real estate, concealed appraisals of the properties, and concealed the existence of violations of the municipal building code. These allegations are supposed to constitute the material misrepresentation of fact essential to a cause of action for fraud. See, e. g., Bennett v. Hodge, 374 Ill. 326, 332, 29 N.E.2d 524, 527 (1940); Zanbetiz v. Trans World Airlines, Inc., 72 Ill.App.2d 192, 219 N.E.2d 98 (1966).

However, the alleged deception as to value is in no manner distinguishable under Illinois law from the range of matter covered by the general rule that statements as to value in such transactions are to be considered merely “opinion” rather than statements of material fact.12 In Coleman v. Goran, No. 47992 (1st Dist. June 14, 1960),13 the Illinois Appellate Court for the First District repeated the general rule and stated its primary exception as follows:

Statements as to value of property are ordinarily considered mere expressions of opinion, and, for that reason, are not sufficient to warrant a recision of the contract, even though they are false and relied upon by the other party. The rule is otherwise where the misrepresentation relates a specific, extrinsic fact, peculiarly within the knowledge of the party making the statement, which materially affects the value. Id. at 4.

Count V of this complaint does not include any allegation which would bring it within the purview of the exception. In particular, the allegation that defendants did not reveal violations of the municipal building code and thereby “concealed the violations, does not amount to the sort of reliance which can substantiate a cause of action under the exception to the general Illinois rule. Coleman involved a very similar allegation which the Court specifically held to be insufficient, stating in summation of the Illinois law,

If the purchaser has an opportunity to view the property, it is his duty to make use of that opportunity. Unless the representations concern matters which the prospective purchaser cannot readily determine upon examination, he will be held to have exer*226cised his own judgment rather than to have relied on the statements of the seller. [Citing Malnick v. Rosenthal, 313 IIl.App. 249, 255 [39 N.E.2d 767] (1942) and Bundesen v. Lewis, 368 Ill. 623 [15 N.E.2d 520] (1938).] Id. at 6.

Furthermore, while we cannot accept the proposition that concealment of appraisal is never relevant to a claim of fraud, a general allegation of such concealment in the absence of other specific pleading of fraud obviously cannot suffice for a statement of a cause of action for fraud. It obviously cannot simply because while sellers will often obtain such appraisals, the revelation of the appraisals to their buyers is not even the custom nor usual expectation in real estate transactions. The same is true of the allegation that defendants concealed the prices at which they purchased the real estate in question from the former white owners.

This failure to state specific elements making up a cause of action for fraud indicates a more general, yet independent, failing of the claim. There is absent the definiteness that is required by Rule 9(b) of the Federal Rules of Civil Procedure as a condition of pleading fraud in the federal courts.14 This, however, does not mean that a complaint properly alleging fraud in a class action must specify the particular details of every transaction and occurrence that comprises the allegedly unlawful activity. Such a requirement would undermine the utility of the class action device, particularly in a case of this magnitude, involving a multitude of similar individual relationships. The burden of pleading would eliminate the device in the very cases where it might be most appropriate and most useful. But even considering the special problem of pleading fraud in a class action, it is still reasonable and necessary that the class action complaint state generally facts establishing each and every element essential to a cause of action for fraud.

As clearly defined in Illinois law, the elements are: (1) The misrepresentation must be of a statement of fact; (2) is must be made for the purpose of influencing the other party to act; (3) it must be untrue; (4) the party making the statement must know or believe it to be untrue; (5) the person to whom it is made must believe and rely on the statement; and (6) the statement must be material. Bennett v. Hodge, 374 Ill. 326, 332, 29 N.E.2d 524, 527 (1940). Accord, Zanbetiz v. Trans Would Airlines, Inc., 72 Ill.App.2d 192, 219 N.E.2d 98, 102 (1st Dist. 1966). Besides the failure to specify anything that could be considered a material misstatement under Illinois law, the complaint in this case fails to articulate the other elements required. The instruction of Rule 9(b) is certainly at least that the basic elements of a cause of action for fraud cannot be left to implication.

Moreover, plaintiffs’ claim of breach of implied warranties is similarly defective. Nothing but the bare conclusion that breach of warranties have occurred is stated. Though the claimed breach of warranties may be impliedly related to the general background of activity and circumstance pleaded in Count V and previously in Count I, there is no delineation of the substance of the alleged cause of action, nothing which would satisfy even the liberal federal notice pleading requirement.15

*227As an aspect of the cause of action plaintiffs seek to establish under Count V of the complaint, plaintiffs urge the equitable concept of unconscionability. They allege that the strategy of exploitation engaged in by defendants, including the exploitation of plaintiffs’ lack of education and lack of experience in real estate matters relative to defendants, resulted in the “unconscionable provisions” and “unconscionable prices” allegedly characteristic of these contracts. Plaintiffs thus claim not that the device of the installment contract or the provisions relating to evictions, confessions, forfeitures and defaults are unconscionable per se, but that they represent unconscionability as they resulted in this case.

The equitable concept of “unconscionability” becomes meaningful always in the context of otherwise defined factors of inequality, deception and oppression. A standard statement of the concept reads,

When the accompanying incidents are inequitable and show bad faith, such as concealments, misrepresentations, undue influence, oppression on the part of the one who obtains the benefit, or ignorance, weakness of mind, sickness, old age, incapacity, pecuniary necessities, and the like, on the part of the other, these circumstances, combined with inadequacy of price, may easily induce a court to grant relief, defensive or affirmative. 3 Pomeroy, Equity Jurisprudence, § 928, pp. 640-641 (1941).

The Illinois cases present a great variety of situations where a concurrence of any of the above elements will be sufficient for invocation of the principle of unconscionability. But one point at least is clear upon review of the cases. Application of the doctrine requires extreme circumstances beyond what can be understood or implied from any of the allegations in this complaint. As already discussed, the complaint does not state the bare substance of a claim of fraud. Furthermore, plaintiffs’ lack of education and lack of experience relative to defendants can obviously not in itself independently constitute a significant factor of unconscionability in a free market system where such relationships are the inevitable day-to-day matter of the functioning economy. Moreover, the general rule is that mere excessive price is not a sufficient circumstance to independently support a claim of unconscionability. See, Chicago Title & Trust Co. v. Illinois Merchants’ Trust Co., 329 Ill. 334, 346, 160 N.E. 597, 603 (1928); Scott v. Wilson, 15 Ill.App.2d 456, 146 N.E.2d 397 (1st Dist. 1957). Even the rare Illinois cases that consider a disparity in values exchanged as a sufficient independent circumstance involve egregious disparity well beyond what is alleged in this case.16 Also, these rare cases are significantly distinct from the instant case in that the court is typically being asked to enforce the unconscionable contract; and when the court refuses, it states as its reason the classic proposition that “[c]ourts of equity will not lend their aid to assist one in realizing upon an unconscionable bargain.” Koch v. Streuter, 232 Ill. 594, 604, 83 N.E. 1072, 1077 (1908). See, also, In re Chicago Reed & Furniture Co., 7 F.2d 885, 886 (7th Cir. 1925).

Finally, plaintiffs have also alleged that due to the shortage of housing for negroes, plaintiffs were placed in a position of unequal bargaining power severe enough to render the contracts that resulted from defendants exploitation of this situation unconscionable. But while the discriminatory exploitation of a system of de facto segregation is unlawful under the Civil Rights Act, the artificial shortage of housing for negroes does not constitute an appropri*228ate foundation for application of the principle of unconscionability. As the principle is generally understood in the law of the State of Illinois, it does not normally extend to situations resulting from artificially contrived market conditions. By contrast, the economic substance of the injustice described in this complaint relates naturally to the concerns of the antitrust laws and the Civil Rights Act. While on the basis of some extreme situation of unequal bargaining power due to the conjunction of absolute need and dire shortage, a court might conceivably apply the doctrine of unconscionability, such circumstances are not described in the instant complaint and the necessarily awkward extension of the principle to support Count V of this cause would necessarily create a misfit in the law.

In Count V of the complaint plaintiffs also assert that defendants are guilty of violation of the usury law of the State of Illinois, Illinois Revised Statutes ch. 74, § 5 (1967). Plaintiffs offer the following statement on the basis for their claim:

(j) Defendant-sellers extracted from plaintiffs unlawful and usurious rates of interest through the devices and subterfuges of (i) charging plaintiffs excessive amounts for insurance, (ii) charging plaintiffs for commissions for obtaining insurance, (iii) collection of deposits for real estate taxes many months prior to the time the taxes were due or paid; (iv) charging excessive amounts for so-called closing costs, and (v) increasing the purchase prices to amounts far in excess of the fair value of the properties. The real purpose and effect of the transaction was to provide for excessive and usurious rates of interest to be taxed against and paid by plaintiffs.

It has always been the understanding of the courts that the Illinois usury statute relates to loans as distinct from purchase and sale. See, e. g., In Re Oakes, 267 F.2d 516, 518 (7th Cir. 1959) ; Manufacturers Finance Trust v. Stone, 251 Ill.App. 414, 420 (4th Dist. 1929); Primley v. Shirk, 60 Ill.App. 312, 314 (1st Dist. 1895); aff’d, 163 Ill. 389, 45 N.E. 247 (1896). Plaintiffs, however, contend that to conclude that the contracts in this case are not usurious under the law would be to allow a triumph of terminology over reality. They insist that though the transactions in this case are commonly described as purchase and sale, the various devices described by the above allegations were all means by which defendants secured usurious rates of interest for what were essentially loans.

We reiterate that it is obvious from the substance of this complaint that the intention of each of the plaintiffs, at the time of execution of the contracts, was the purchase of a personal residence. The rule in Illinois has long been that “on a sale of property * * * there can be no usury charged simply because the price is fixed at one sum if paid at one time, and at another sum if paid at another.” Primley v. Shirk, 60 Ill.App. 312, 314 (1st Dist. 1895), aff’d 163 Ill. 389, 45 N.E. 247 (1896). Plaintiffs submit no support for the proposition that price in excess of fair market value can make a loan of what is commonly understood to be a purchase and sale. And even if this were a case where the underlying reality is a loan, the excess in price could not be considered interest under the Illinois law as presently interpreted. A similar conclusion was stated by Judge Duffy in his concurring opinion In Re Oakes, where he said,

As an original proposition, I would say the transaction in question was a loan. When a seller receives consideration from a buyer solely because of delayed payment, this consideration is, in fact, interest whether it is called “service charges,” “finance charges,” “risk fees,” or some other name. Nevertheless, in this case we must follow Illinois law and decisions by Illinois Courts. Decisions such as Manufacturers Finance Trust v. Stone, 251 Ill. App. 414 compel a holding by us that the transaction in question is a sale *229and not a loan. 267 F.2d 516, 519-520 (7th Cir. 1959).

Judge Duffy’s conclusion as to the incidental charges is equally applicable to the charges alleged in this case. In particular, the advance collection of deposits for real estate taxes is a common practice to assure the avoidance of tax liens. Plaintiffs submit no case which suggests that such practice has ever been held to bring a sale of real estate within the usury prohibition. It has indeed expressly been held in Illinois that payment of real estate taxes by a borrower did not render a transaction usurious though the stated interest rate was the highest legal rate. Kidder v. Vandersloot, 114 Ill. 133, 28 N.E. 460 (1885). Also, it has been recently held that a mortgagor’s payment of insurance premiums in addition to interest on a loan did not render the loan usurious notwithstanding that the insurance was issued by and assigned to the mortgagor itself, so long as the insurance was normal in respect to premiums and costs. Equitable Life Assurance Society of United States v. Scali, 38 Ill.2d 544, 232 N.E.2d 712 (1967). In sum, whatever the “reality” of the transactions in this case, so far as the claim of usury is concerned, our obligation to follow the Illinois law requires that the motions to dismiss be granted.

Motions of Various Banks to Dismiss and for Summary Judgment

Certain of the banks named as defendants in their capacity as trustees under land trust agreements have moved to dismiss or for summary judgment on the ground that they hold only legal title to the properties in question and have no authority to deal with the properties beyond their limited responsibilities as trustees. They describe their responsibilities under the agreements and the law of Illinois as comprehended by the duty to follow directions of beneficiaries and to perform certain ministerial responsibilities. They insist that they lack any power of management or control which could be the basis for participation in the alleged conspiracy and pattern of discriminatory conduct. The complaint, however, alleges that these defendants actively participated together with the other defendants in the unlawful activity. At this early stage of the litigation, on the basis of the complaint, motions and affidavits before the Court, the allegation that the banks have participated is not so frivolous nor unlikely as to render it appropriate to grant the banks’ motions. On the basis of the allegations, it is certain that in some circumstances at least, the banks would have had notice of the disparities in price, the appraisals and the “turn-around” nature of some purchases and sales. In other words, the allegations as directed against the movant banks have stated causes of action and raised material issues of fact which under Rules 12(b) (2), 12(b) (6) and Rule 56 of the Federal Rules require denial of the banks’ motions.

Moreover, although the banks claim that they are not the real parties in interest and could not, therefore, participate in the unlawful activity alleged, the banks in many instances are the only identified sellers since they executed the contracts as sellers, and the buyers have no way to identify the real parties whom the banks assert have complete management and control over the trust properties. Until such disclosure is made, plaintiffs are relegated to the public record as it now stands in seeking vindication of any right or recovery of any loss. For the present, therefore, plaintiffs properly assert their claims against the banks even though the banks may subsequently demonstrate that they are only nominal parties in interest.

Finally, it is also right that the banks should remain parties at this stage of the litigation because their presence may well be required for the successful implementation of any relief granted. While a trustee bank could generally be expected to cooperate in the implementation of any decree directed to the beneficiaries under a trust, the lack of iden*230tifieation of the real parties in interest creates possible complications which make it desirable to retain the banks at this time as named defendants. In any case, the presence of the trustee will indubitably facilitate the implementation of any decree because the trustee may be required to act as a prime mover in the resolution of the litigation with respect to a particular contract.

Motions to Dismiss “Contract Buyers League”

Defendants have moved to dismiss “Contract Buyers League” as a party plaintiff. The position they take is that the Contract Buyers League is not a proper party to this case because Rule 17 of the Federal Rules of Civil Procedure requires that “[e]very action shall be prosecuted in the name of the real party in interest”, and because the Contract Buyers League does not survive Rule 17(b), which in determining capacity to sue or be sued provides,

The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of his domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held, except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States *• * *

In response to the motions to dismiss, plaintiffs analogize the situation of the Contract Buyers League to various organizations which in promoting the interests of their members have been found to have standing in the federal courts. But the cases cited by plaintiffs are in-apposite. The analogies all ultimately fail because they disregard the fundamental premises of Rule 17.

Rule 17 is intended to ensure that the contours of a given litigation extend no further than the interests apparently necessary for the resolution of the controversy stated. This is the import of both the requirement that “[e]very action shall be prosecuted in the name of the real party in interest,” and of the requirement that the participation of an unincorporated association be justified by the showing that the case involves the “enforce [ement] for or against it [of] a substantive right existing under the Constitution or laws of the United States.”

Plaintiffs rely in large measure on the similarity of the role in litigation of the Contract Buyers League and the NAACP. Specifically, plaintiffs cite NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), even though that case is obviously distinguishable, like other cases involving the NAACP on the ground that the NAACP is a corporation while the Contract Buyers League is an unincorporated association, a distinction specifically recognized in Rule 17. And in the Alabama case, the NAACP itself was being sued by the State of Alabama which was seeking to enjoin it from engaging in activity within the State. The ease was thus brought to enforce an alleged substantive right against the association, a situation which is not present in this case, but which is the condition for a finding that a grouping of individuals that is merely an unincorporated association has standing. One example of this situation where an unincorporated association is properly a party is another case cited by plaintiffs, Todd v. Joint Apprenticeship Committee of Steel Workers of Chicago, 223 F.Supp. 12 (N.D.Ill.1963). The court in Todd pointed out that Rule 17(b) (1) authorized the suit against the unincorporated association because the suit was brought to enforce a substantive right against the association as the rule explicitly requires. Id. at 17.

What the cases point to and what the rule generally stated means is that the test for whether an unincorpo*231rated association is a proper party is whether relief that may be granted will either redound to the benefit of the party alleged to have standing, or will cause the alleged party to suffer damage. Stated simply, the crux of the matter in the instant case is that, except as it is named in certain defendants’ counterclaims,17 there is no relief which this Court is being asked to grant for or against the Contract Buyers League. The Court has asked plaintiffs for information descriptive of the organization called “Contract Buyers League,” particularly as to its activities and purposes. In their argument to the Court, plaintiffs have subsequently described the Contract Buyers League so as to restrict the life and purpose of the organization solely to this lawsuit. It appears to be an organization created exclusively to concern itself with the particular matters presented for resolution in this action. But the members of the Contract Buyers League who hold the contracts that are the substance of this litigation are fully in this case as members of the defined class of plaintiffs. Any relief secured will be secured by them directly as members of the class, and as the case is presently stated, the Contract Buyers League consequently cannot be the object of any relief. Moreover, the cases cited by plaintiffs, except for what appears to be a single possible aberration,18 do not indicate a determination by any court that both a class of persons and the association that represents the class can be proper parties. In the cases cited by plaintiffs, contrary to the instant case, the court was being asked by the organization alone for relief. One of these cases, for instance, is Citizens Association of Georgetown v. Simonson, D.C.Cir., 403 F.2d 175, where the suit was brought by the organization for its members, who were not present in the case in their own right.

Finally, there is no logic to the argument that thé presence of the Contract *232Buyers League in this suit is somehow required as a condition for plaintiffs to organize for the vindication of their rights. Any organizational efforts outside the courtroom do not in any necessary manner depend on the presence of the Contract Buyers League as a party to this suit. Thus neither under Rule 17 nor for any other reason is the presence of the Contract Buyers League as a party to this suit justified. The motions to dismiss the Contract Buyers League must therefore be granted.

Appropriate orders consistent with all the foregoing will be entered.

Per curiam

: We here consider consolidated appeals, prosecuted from judgments for possession entered by the circuit court of Cook County in favor of plaintiffs, which present issues relating to the construction and constitutional validity of the Forcible Entry and Detainer Act, (Ill. Rev. Stat. 1967, ch. 57,) the distinctive and limited purpose of which is to supply a speedy remedy to permit persons entitled to the possession of lands to be restored thereto. Wall v. Goodenough (1855), 16 Ill. 415.

General factual background reveals that all the defendants are members of the Negro race who, at various times during the 1960’s, entered into installment contracts for the purchase of residential properties. Some were of new *252construction; others were older properties. The plaintiff s-sellers, for the most part, were developers and builders of residential areas, and others dealing in the sale of real estate. Generally speaking, it appears that the contract prices for new residences were in the vicinity of $25,000. Monthly installments on such contracts ranged from $140 to $160. Defendants, for the most part, complied with their contracts and accumulated equities in their respective properties until 1968 when a general feeling of dissatisfaction arose among the contract buyers stemming from beliefs that they had been overcharged for their properties, and that unfair advantage and discrimination, made possible by the social and economic problems encountered by members of their race in the purchase of suitable residence properties, had been practiced against them. We do not find, however, nor have we been so advised, that any of the contract purchasers then took any affirmative steps to pursue State remedies for obtaining judicial relief from the allegedly unconscionable contracts. Instead, they appear to have embarked upon a concerted course of self-determination and self-help, for an apparent purpose of securing a modification and renegotiation of their contracts, and stopped making their installment payments. In so doing, they defaulted on their contract obligations and, by the terms of the contracts, exposed themselves to forfeiture of their contract rights and equities and to suits for possession.

Early in 1969 two class actions, predicated on section 3 of the Civil Rights Act of 1866 (42 U.S.C. § 1982; and see: Jones v. Alfred H. Mayer Co. (1968), 392 U.S. 409, 20 L. Ed. 2d 1189, 88 S. Ct. 2186), were filed in a Federal district court on behalf of contract purchasers of both new and old properties. In those actions it was alleged that- the contracts were unlawful and in violation of various constitutional and statutory rights of the purchasers, and the relief requested was that the payment and forfeiture provisions be declared presently unen forcible and that the con*253tracts be rescinded or reformed. We digress to state that these actions are still pending, a panel of three judges having decided on February 11, 1970, at the instance of the contract sellers, to follow a course of abstention until the issues of the present case have been decided.

In May, 1969, the Federal actions withstood motions by the contract sellers to have them dismissed and, commencing at about that point of time, the sellers proceeded with forcible entry and detainer actions, now numbering in the hundreds, in the circuit court of Cook County. And it is from this background that the principal issues in the present appeal have arisen. As noted, all of such actions have concluded with judgments for possession being entered for the plaintiffs. Some of the defendants perfected appeals; some sought to appeal by filing notice but suffered dismissal for failure to file an appeal bond as required by sections 18 and 19 of our Act, (Ill. Rev. Stat. 1967, ch. 57, pars. 19, 20,) while still others took no steps toward an appeal. Where appeals were not perfected, evictions reaching mass proportions have followed.

During September, 1969, some 370 contract buyers filed a declaratory judgment action in the circuit court of Cook County for a declaration that certain defenses which were being denied to defendants in the actions for possession could be advanced and litigated, or an alternative declaration that the Forcible Entry and Detainer Act was unconstitutional if it was to be construed as meaning that such defenses could not be advanced and litigated. This action, the caption of which was Alexander et al. v. Hamilton Corporation et al., was dismissed on motion of the defendants thereto and the plaintiffs perfected an appeal to the appellate court. We have since allowed the appeal to be transferred to this court and have caused it to be consolidated with appeals taken from the forcible entry and detainer actions.

The first of the appeals from the judgments for posses*254sion to reach this court was in the case of Rosewood Corporation, plaintiff-appellee versus Chester J. Fisher and Julia M. Fisher, defendants-appellants. And although notice of appeal was filed May 23, 1969, it was not until January 21, 1970, that the record on appeal was filed in this court. In addition to constitutional questions, this appeal, as shall subsequently be discussed in greater detail, also raised an issue, involving a construction of the Forcible Entry and Detainer Act, as to whether the trial court erred in refusing to permit certain defenses relied upon by defendants to be pleaded and heard. Thereafter, on January 22, 1970, we permitted the appeal in Lawson Corporation v. Jackson to be transferred to this court from the appellate court and to be consolidated with Fisher, inasmuch as a similar issue relating to defensive pleadings was involved. By subsequent orders continuing up to the time this court convened for its March, 1970, Term, we caused some 156 additional appeals to be consolidated with Fisher either by permitting their transfer from the appellate court, or by granting defendants who had suffered adverse judgments in the trial court to file notices of appeal to this court. In all of these additional cases, as in Fisher and Jackson, there is involved a construction of our Act insofar as it relates to the pleadings of defendants.

Section 2 of the Forcible Entry and Detainer Act provides in pertinent part that a person entitled to possession of lands may maintain an action and be restored to possession: “Fifth, When a vendee having obtained possession under a written or verbal agreement to purchase lands or tenements, and having failed to comply with his agreement, withholds possession thereof, after demand in writing by the person entitled to such possession.” (Ill. Rev. Stat. 1967, ch. 57, par. 2.) Section 5 thereafter provides that a person entitled to possession may initiate an action by filing a complaint in the circuit court of the county where the premises are situated and then continues: “The defendant may under *255a- general denial of the allegations of the complaint give in evidence any matter in defense of the action. No matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise: * * *.” (Emphasis added.) But it is clear that matters germane to the distinctive purpose of the action may be introduced by a defendant by way of counterclaim or otherwise, inasmuch as section 11 of the Act directs that: “The provisions of the Civil Practice Act, and all existing and future amendments of said Act and modifications thereof, and the rules now or hereafter adopted pursuant to said Act, shall apply to all proceedings hereunder in courts, except as otherwise provided in this Act.” Indeed, it was not until the Civil Practice Act was adopted that the words emphasized in the quotation from section 5, appearing above, were added to the section. (Cf. Ill. Rev. Stat. 1933, ch. 57, par. 5, with Ill. Rev. Stat. 1935, ch. 57, par. 5.) And so far as the distinctive purpose of the Forcible Entry and Detainer Act is concerned it has been accurately and succinctly stated in Bleck v. Cosgrove, 32 Ill. App. 2d 267, 272 that: “Forcible entry and detainer is a summary statutory proceeding to adjudicate rights to possession and is unhampered and unimpeded by questions of title and other collateral matters not directly connected with the question of possession.”

In the Fisher and Jackson cases, whose pleadings are treated upon severally and taken as being representative of those in all the possession cases to which this appeal has been extended, the defendant sought to introduce by way of answer, counterclaim or affirmative defense, various matters going to the validity and enforcibility of the contracts upon which plaintiffs based their claim of a right to possession. Included were allegations that the contracts were unconscionable and unenforcible; that they were usurious; that they were extracted and induced by fraud; and that they were in violation of the civil and various constitutional rights of the defendants. And while a contention is made *256by plaintiffs that such matters were improperly and insufficiently pleaded, that issue is not open to our consideration. It is well settled that the sufficiency of a pleading may not be attacked for the first time in a court of review. (McFail v. Braden, 19 Ill.2d 108, 120.) On motion of plaintiffs, the trial court struck the defensive pleadings challenging the validity and enforcibility of the contracts on the ground that they were not germane to the issue of right to possession and therefore prohibited by section 5 of the Act. Defendants now contend that such a construction of the section causes the Act to violate constitutional guarantees of equal protection and due process of law, and various other provisions of our State and Federal constitutions. It is broadly asserted, too, that such a construction of the Act in its application to contract purchasers of land causes it to be an arbitrary and discriminatory measure against poor persons and members of minority groups who are unable to obtain mortgage financing when they purchase residences. In the view we take, however, these constitutional claims are not reached and need not be decided. See: Bismarck Hotel Co. v. Petriko, 21 Ill.2d 481; City of Detroit v. Gould, 12 Ill.2d 297.

Limiting ourselves to a consideration of the act only so far as it applies to contract purchasers of land, this case is, so far as we can ascertain, one of first impression in this court. It is our opinion that the defenses going to the validity and enforcibility of the contracts relied upon by the plaintiffs were germane to the distinctive purpose of the forcible entry and detainer actions and were improperly stricken. That purpose, to repeat, is to restore possession to one who is entitled to the right of possession. “Germane” has been judicially defined as meaning “closely allied,” and is further defined in Webster’s New Twentieth Century Dictionary, p. 767, as, meaning: “closely related; closely connected; relevant; pertinent; appropriate.” Where as here, the right.to possession a plaintiff seeks to assert has its *257source in an installment contract for the purchase of real estate by the defendant, we believe it must necessarily follow that matters which go to the validity and enforcibility of that contract are germane, or relevant, to a determination of the right to possession. This is particularly true for two reasons. First, because a contract buyer becomes the equitable owner of the property upon execution of an installment contract, (Shay v. Penrose, 25 Ill.2d 447, 449,) and thus by such an action may be stripped of his equitable ownership as well as possession; second, the contract purchaser is faced not only with the loss of possession, but, unlike a tenant, trespasser or squatter, is likewise faced with the loss of the equity accumulated by payments made on the contract. Here, for example, the Fishers had paid approximately $10,000 toward satisfaction of their total contract obligations. On the other side of the coin, a contract seller claiming and seeking to enforce a claimed right of possession should not be permitted to prevail on the basis of such contract so long as its validity and enforcibility is questionable under the law. Should a contract purchaser not be permitted to defend upon the very contract upon which the seller relies, in our judgment the result could be, as argued, a direct denial of constitutional rights and an indirect denial of civil rights. We believe that contract buyers may plead equitable defenses and be given equitable relief if it is established that the contracts are unconscionable or in violation of civil rights as here contended. Cf. Horner v. Jamieson, 394 Ill. 222; Stein v. Green, 6 Ill.2d 234.

Section 11 of the Forcible Entry and Detainer Act provides that the rules of practice and pleading in other civil cases shall apply to detainer actions, and, as previously noted, contemporaneously with the enactment of the Civil Practice Act section. 5 of the detainer act was amended in terms which permits matters germane, (i.e., closely allied; closely related, closely connected; appropriate,) to be introduced by a defendant. The fusion of the practice, .and pro*258cedure in suits at law and in equity accomplished by the Civil Practice Act is, in our opinion, sufficient to permit necessary equitable relief in these proceedings, rather than to force upon defendants a separate proceeding where the same relief will be forthcoming. Cf. Ellman v. De Ruiter, 412 Ill. 285; Nikola v. Campus Towers Apartment Bldg. Corp. 303 Ill. App. 516.

A necessary concomitant of the seeking of relief through equity is a willingness to do equity. This is fundamental in equity jurisprudence. The invocation by defendants of equitable defenses necessarily requires that the trial court exercise its discretion by ordering such payments as the court deems proper and any other equitable arrangements protective of the property and the interests of all parties during the pendency of the litigation.

It does not escape us that the construction we have placed upon the act may interfere with the summary aspects of the remedy, when it is invoked against contract purchasers. But the right of such purchasers to be heard on relevant matters, and to be secure in their constitutional rights, as well as the desirable purpose of preventing a multiplicity of suits, is, and must be, superior to the desire to provide a speedy remedy for possession.

Section 3 of our Act deals with the demand for possession which must precede the filing of a complaint for possession and, so far as pertinent at this time, provides the following: “* * * in case there is a contract for the purchase of such lands or tenements, notice that a proceeding under the provisions of this Act is to be instituted shall be given to the purchaser under such contract at least thirty days prior to the institution of such proceeding, * * *. Which demand for possession may be in the following form:

To_

I hereby demand immediate possession of the following described premises: (describing the same.) *259Which demand shall be signed by the person claiming such possession, his agent or attorney.” Ill. Rev. Stat. 1967, ch. 57, par. 3; emphasis added.

It is the contention of the defendant Fisher that the form of demand permitted violates the requirements of due process and equal protection for reason that it fails to give persons sought to be dispossessed adequate notice of the claims against them. While the authorities upon which Fisher relies to support this theory are of doubtful application to a demand, as distinguished from a pleading, an examination of the record reveals that he is in no position to raise this objection. The plaintiff caused to be served on defendant both a “Demand For Strict Compliance With Contract And Warning Notice Pursuant To Forcible Entry and Detainer Act” (February 12, 1969), and a “Notice Of Forfeiture And Demand For Immediate Possession” (March 26, 1969,) which were couched in terms which adequately and completely informed defendant of the claim against him. Defendant thus lacks standing to attack the form suggested by the act. It has been stated many times that this court “will not determine the constitutionality of the provisions of an act which do not affect the parties to the cause under consideration, or where the party urging the invalidity of such provisions is not in any way aggrieved by their operation.” Schreiber v. County Board of School Trustees of Peoria County, 31 Ill.2d 121, 125, and cases there cited.

Supported only by a reproduction of the minute sheet compiled by the various trial judges, the plaintiff in the Jackson case has made a motion in its brief for the dismissal of that appeal on the ground that defendants failed to file their appeal bond within 5 days from the rendition of judgment as required by section 18 of the Forcible Entry and Detainer Act. (Ill. Rev. Stat. 1969, ch. 57, par. 19; see: Long v. Long, 51 Ill. App. 2d 401.) With regard to motions in reviewing courts, it is there stated: “When the motion is *260based on facts that do not appear of record it shall be supported by affidavit.” (43 Ill.2d R. 361) The minutes of a trial judge do not constitute a record of the proceedings of the court, (Mitchell v. Van Scoyk, 1 Ill.2d 160, 175; Gurnea v. Seeley, 66 Ill. 500; McCormick v. Wheeler, Mellick & Co., 36 Ill. 114,) and the requisite affidavit to support plaintiff’s motion has not been filed.

Accordingly, and for the reasons stated, the judgments in the Fisher and Jackson cases are reversed, and the causes are remanded to the circuit court of Cook County for further proceedings in accordance with the views expressed in this opinion. The same disposition is made in those appeals which have been transferred to this court and consolidated with Fisher, wherein notice of appeal and appeal bond were filed within the 5-day period required by the Act and wherein defensive pleadings germane to the issue were stricken.

This leaves for consideration the balance of the 156 appeals from judgments for possession wherein we permitted the filing of notices of appeal to this court and consolidated with Fisher. Upon reconsideration, we conclude that consolidation was improvident. While all involve issues relating to the construction or validity of the appeal and bond provisions of the Act, they were, for the most part, allowed to be brought to this court on the eve of oral argument in the Fisher and Jackson cases and subsequent to the time that briefs had been filed. We therefore hold these appeals under advisement and, under the circumstances, hold that the parties thereto may file such motions and briefs as they deem desirable in accordance with the regular briefing schedule of this court computed from the date of filing of this opinion. The same disposition is made of Independence Homes, Inc. v. Robert Durham, wherein an appeal was reinstated by an order of March 10, 1970, and the cause consolidated with Fisher. ... .

We..further: conclude -that the appeal in Alexander,- the *261declaratory judgment action, was improvidently consolidated with Fisher. It, too, will be held under advisement.

Judgments either reversed and remanded, with directions; or held under advisement.

Mr. Justice Schaefer took no part in the consideration or decision of this case.

SWYGERT, Chief Judge.

This appeal is from a grant of a directed verdict for defendants at the close of the plaintiffs’ case in chief. Plaintiffs are a class of black citizens who purchased newly constructed houses in Chicago from defendants under land installment contracts during the period from 1958 to 1968. Defendants include the building contractor of the houses and the various land companies through which the houses were sold to plaintiffs.1 In the district court plaintiffs claimed that as a result of intense racial discrimination in Chicago and its, metropolitan area there existed at all pertinent times a housing market for whites and a separate housing market for blacks, the latter confined to a relatively small geographical area in the central city. Plaintiffs contended that the demand among blacks for housing • greatly exceeded the supply of housing available in the black market and that the defendants exploited this situation by building houses in or adjacent to black areas and selling the houses to plaintiffs at prices far in excess of the amounts which white persons paid for comparable " residences in neighboring urban areas, and on onerous terms far less favorable than those available to white buyers of similar properties, all in violation of plaintiffs’ rights under the Thirteenth and Fourteenth Amendments and under the Civil Rights Act of 1866.2 Plaintiffs’ exploitation theory of liability was sustained by District Judge Hubert Will as stating a claim for relief under section 1982 of the Civil Rights Act of 1866. Accordingly, Judge Will denied defendants’ motion to dismiss plaintiffs’ complaint. Contract Buyers League v. F & F Investment, 300 F.Supp. 210 (1969), aff’d on other grounds, 420 F.2d 1191 (7th Cir. 1970), cert. denied, Universal Builders, Inc. v. Clark, 400 U.S. 821, 91 S.Ct. 40, 27 L.Ed.2d 49 (1970). The case then went to trial before District Judge Joseph Sam Perry, and plaintiffs, pursuant to Judge Will’s approval of their exploitation theory of liability under section 1982, presented evidence before a jury of defendants’ alleged exploitation of the discriminatory housing situation prevalent in Chicago during the period 1958 through 1968. Upon completion of plaintiffs’ case in chief, Judge Perry granted defendants’ motion for directed verdict, holding in opposition to Judge Will’s theory of the case that:

[Cjounsel for the plaintiffs have not painted a pretty picture of the defendants, but that picture is a picture of exploitation for profit, and not racial discrimination.

* . * * * * *

Nowhere in the six weeks’ trial is there one scintilla of evidence that the defendants or any of them or their agents ever refused to sell to a white person or a black person or a nonwhite person any house or refused to sell one or the other at a higher or lower price, absolutely no positive evidence of discrimination in this record.

-X- •* -X* * *x* #

Accordingly, for want of any evidence in support of the complaint, the motion for a directed verdict by all of *328the defendants now on trial is hereby granted, and the complaint of all of the plaintiffs is hereby dismissed as to all of the defendants.

Under Judge Perry’s theory of the case, absent evidence of defendants’ sales of the same or similar housing to whites on more favorable terms and prices, namely, the traditional theory of racial discrimination, plaintiffs failed to make out a case of liability under section 1982.

Plaintiffs raise numerous issues in this appeal the most important of which of course is the correctness of the grant of a directed verdict for the defendants. The other issues can broadly be categorized as challenges to the correctness of certain of the trial judge’s evidentiary rulings and other procedural rulings.

In judging the propriety of the grant of the directed verdict, we are confronted with two issues. We must first resolve the conflict as to the scope of section 1982. That is, we must determine whether section 1982 covers only the so-called traditional type of discriminatory conduct, or whether a claim may be stated under section 1982 by proof of exploitation of a discriminatory situation already existing and created in the first instance by the action of persons other than defendants. If we determine that section 1982 is violated under the latter theory we then must determine whether the evidence, both the admitted evidence and erroneously excluded evidence, when viewed in the light most favorable to plaintiffs, together with all inferences that may be reasonably drawn therefrom, is such that it can be found that plaintiffs have made out a prima facie case.

I

Section 1982 of the Civil Rights Act of 1866 provides:

All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.3

Plaintiffs’ “exploitation” theory of liability under this section can briefly be restated as follows: As a result of racial discrimination there existed two housing markets in Chicago, one for whites and another for blacks, with the supply of housing available in the black market far less than the demand. Defendants entered the black market selling homes for prices far in excess of their fair market value and far in excess of prices which whites pay for comparable homes in the white market and on more onerous terms than whites similarly situated would encounter. Plaintiffs contend that by so acting defendants seized upon and took advantage of the opportunity created by racial residential segregation to exploit blacks in violation of section 1982.

It is asserted that to countenance such actions by the defendant would be in direct contravention of the express language of section 1982 which provides by clear implication that black citizens “shall have the same right as is enjoyed by white citizens . to . . . purchase . . . real . . . property.” Moreover, plaintiffs claim *329that a ruling which would hold defendants’ asserted acts of exploitation to be outside of the coverage of section 1982 would be contrary to the Supreme Court’s declaration in Jones v. Mayer Co., 392 U.S. 409, 443, 88 S.Ct. 2186, 2205, 20 L.Ed.2d 1189 (1968), and that section 1982 was meant to be a vehicle through which “to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man.”

Defendants contend that absent a showing of the traditional form of discrimination, namely, that defendants refused to sell to blacks because of their race, or offered to sell the same houses to whites at lower prices or on more favorable terms than they offered to sell to blacks, plaintiffs have not made out a case under section 1982. Defendants assert that the houses they sold to plaintiffs in the black market were available to whites and would have been sold on the same terms and for the same prices as sales to the black plaintiffs. Therefore, defendants argue, plaintiffs enjoyed “the same right” as enjoyed by white citizens to purchase houses in the black market. Moreover, it is urged that other sellers and not defendants discriminated against plaintiffs in the first instance by refusing to sell to plaintiffs housing in other urban areas, thereby excluding them from the white market. The defendants claim that an extension of section 1982 so as to proscribe their alleged acts of exploitation would be tantamount to holding defendants liable for the discrimination of others without a showing of any discrimination by defendants. With respect to the Supreme Court’s decision in Jones v. Mayer Co., the defendants suggest that it lends no support to the plaintiffs’ desired interpretation of section 1982. Rather, defendants view Jones v. Mayer Co. as authority for their contention that section 1982 prohibits only the so-called traditional type of discrimination and does not encompass plaintiffs’ theory of exploitation liability. Also, defendants urge that plaintiffs’ interpretation of section 1982 would render that section unconstitutionally vague and would expose defendants to risk or detriment without fair warning of the nature of the proscribed conduct. It is on the basis of these arguments that defendants claim that no case can be made under section 1982 for exploitation absent a showing that defendants offered to sell the same or similar homes to whites at lower prices and on more favorable terms than they made available to blacks. We do not agree.

At the outset we note that section 1982 is framed in broad yet clear language. It provides that:

All citizens of the United States shall have the same right as is enjoyed by white citizens thereof to . purchase . . . real . property.

Facially, therefore, the scope of section 1982 would appear to be rather far reaching; indeed such a reading of the statute is supported by the Supreme Court’s interpretation of section 1982 in Jones v. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). In that case the Court was confronted with questions as to the scope and constitutionality of section 1982. The plaintiff in that case, a black person, brought an action pursuant to section 1982 claiming that the defendants refused to sell him a house on the basis of his race. The district court dismissed the plaintiff’s complaint, and the court of appeals affirmed, concluding that section 1982 applied only to state action and not private action. The Supreme Court rejected the argument for a narrow construction of section 1982, holding in broad language:

[T]hat § 1982 bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment. 392 U.S. 413, 88 S.Ct. 2189 [Emphasis in original].

The Court went on to note that section 1982 was an attempt by Congress to *330provide “that the right to purchase and lease property was to be enjoyed equally throughout the United States by Negro and white citizens alike” and that Congress “plainly meant to secure that right against interference from any source whatever, whether governmental or private.” 392 U.S. at 423-424, 88 S.Ct. at 2195. The Court concluded its analysis by stating that section 1982 must be accorded “ ‘a sweep as broad as its language.’ ” 392 U.S. at 437, 88 S.Ct. at 2202. Observing that “when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery,” the Court proceeded to uphold the constitutionality of section 1982 stating:

Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom — freedom to “go and come at pleasure” and to “buy and sell when they please”— would be left with “a mere paper guarantee” if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever á white man can buy, the right to live wherever a- white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep. 392 U.S. 443, 88 S.Ct. 2205.

Clearly the Court’s decision in Jones v. Mayer Co. does not, contrary to defendants’ assertions, detract from plaintiffs’ contention as to the scope of section 1982. Rather, the decision is support for plaintiffs’ theory for in Jones the Court viewed section 1982 as a broad based instrument to be utilized in eliminating all discrimination and the effects thereof in the ownership of property. Accordingly, Jones v. Mayer Co. does not stand as an obstacle to plaintiffs’ case, but supports it.

Defendants insist that section 1982 cannot be construed to encompass other than the traditional type of discrimination, that is, that defendants offered to sell to whites on more favorable terms and prices than to plaintiffs. Keeping in mind the Supreme Court’s admonition in Lane v. Wilson, 307 U.S. 268, 275, 59 S.Ct. 872, 876, 83 L.Ed. 1281 (1939), that the Constitution and statutes promulgated in its enforcement nullify “sophisticated as well as simpleminded modes of discrimination,” we reject defendants’ notion of adherence to a strict, rigid, and traditional type of discrimination. We need not resort to a la-belling exercise in categorizing certain activity as discriminatory and others as not of such character for section 1982 is violated if the facts demonstrate that defendants exploited a situation created by socioeconomic forces tainted by racial discrimination. Indeed, there is no difference in results between the traditional type of discrimination and defendants’ exploitation of a discriminatory situation. Under the former situation blacks either pay excessive prices or are refused altogether from purchasing housing, while under the latter situation they encounter oppressive terms and exorbitant prices relative to the terms and prices available to white citizens for comparable housing.

To avoid this conclusion, defendants contend that even though the results obtained under both the traditional and exploitation theories ' are similar, they come about through significantly different means. Under the traditional theory a black man is dehied the “same right” as a white man in that the seller offers to sell the same house to each but at different prices and terms due to the differences in race of the prospective buyer. It is defendants’ position that they offered the plaintiffs the same terms and prices they would offer whites. Therefore it is asserted that plaintiffs had the same right as white citizens *331This argument ignores current realities of racial psychology and economic practicalities. Defendants can find no justification for their actions in a claim that they would have sold on the same terms to those whites who elected to enter the black market and to purchase housing in the ghetto and segregated inner-city neighborhoods at exorbitant prices, far in excess of prices for comparable homes in the white market. It is no answer that defendants would have exploited whites as well as blacks. To accept defendants’ contention would be tantamount to perpetuating a subterfuge behind which every slumlord and exploiter of those banished to the ghetto could hide by a simple rubric: The same property would have been sold to whites on the same terms.

Defendants urge that other sellers and not they were the active agents of discrimination. That is, blacks were excluded from the white market by other sellers who refused to sell to plaintiffs and that accordingly plaintiffs’ action lies solely against those other owners and real estate operators and not the defendants. But, we repeat, defendants cannot escape the reach of section 1982 by proclaiming that they merely took advantage of a discriminatory situation created by others. We find repugnant to the clear language and spirit of the Civil Rights Act the claim that he who exploits and preys on the discriminatory hardship of a black man occupies a more protected status than he who created the hardship in the first instance. Moreover, defendants’ actions prolong and perpetuate a system of racial residential segregation, defeating the assimilation of black citizens into full and equal participation in a heretofore all white society.4 Through the medium of exorbitant prices and severe, long-term land contract terms blacks are tied to housing in the ghetto and segregated inner-city neighborhoods from which they can only hope to escape someday without severe financial loss. By demanding prices in excess of the fair market value of a house and in excess of what whites pay for comparable housing, defendants extract from blacks resources much needed for other necessities of life, thereby reducing their standard of living and lessening their chances of escaping the vestiges of a system of slavery and oppression.5 Indeed, defendants’ activity encourages overt discrimination by others since it deflects or forestalls a frontal attack on such discrimination by offering the long-oppressed black an unattractive yet alternative choice to that of a confrontation for equal buyers’ rights in a white neighborhood.

Defendants in effect contend that this is solely a matter of economics and not. of discrimination. We cannot accept this contention for although the laws of supply and demand may function so as to establish a market level for the buyer in the black housing areas, it is clear that these laws are affected by a contrived market condition which is grounded in and fed upon by racial discrimination- — -that is, the available supply of housing is determined by the buyer’s race. In other contexts the law has prevented sellers from charging whatever the market will, bear when special circumstances have occasioned market shortages or superior bargaining posi*332tions. In such instances sellers were denied the opportunity to exploit others merely because the opportunity existed.

Contrary to the trial court’s stance, the shortage of housing here was triggered not by an economic phenomenon but by a pattern of discrimination that has no place in our society.6 Accordingly, neither prices nor profits— whether derived through well-intentioned, good-faith efforts or predatory and unethical practices — may reflect or perpetuate discrimination against black citizens. We agree with Judge Will’s statement that “there cannot in this country be markets or profits based on the color of a man’s skin.” Contract Buyers League v. F & F Investment, 300 F.Supp. 210, 216 (N.D.Ill.1969).7 Price and profit differentials between individual buyers may be justified on a multitude of grounds; for example, the prospective purchaser’s reputation or his financial position and potential earning power. But price or profit may not turn on whether the prospective buyer has dark or light pigmentation.8

Defendants urge that acceptance of plaintiffs’ asserted interpretation of section 1982 would render the statute unconstitutional and that the standards of liability utilized to deploy such an expanded interpretation would be unconstitutionally vague and indefinite. They argue that a narrow interpretation is compelled so as to sustain the constitutionality of the statute and to prevent the exposure of “a potential actor to some risk or detriment without giving him fair warning of the nature of the *333proscribed conduct.” Rowan v. Post Office Dept., 397 U.S. 728, 740, 90 S.Ct. 1484, 1492, 25 L.Ed.2d 736 (1970). Defendants’ argument misses the mark for we have not here a penal statute to be strictly construed. Rather, we have a civil statute which is remedial in nature and, as viewed by the Supreme Court, is to be accorded “ ‘. . . a sweep as. broad as its language.’ ” Jones v. Mayer Co., 392 U.S. 409, 437, 88 S.Ct. 2186, 2202, 20 L.Ed.2d 1189 (1968) citing United States v. Price, 383 U.S. 787, 801, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966).

With respect to the standard of liability upon which a violation of the statute may be predicated within the factual context here depicted, we hold that the benchmark, for guiding a seller’s conduct in the black market is reasonableness. That this is a constitutionally sufficient standard by which to gauge one’s conduct in the real estate market was long ago recognized by the Supreme Court in Levy Leasing Co. v. Siegel, 258 U.S. 242, 42 S.Ct. 289, 66 L.Ed. 595 (1922). In that case the Court held that the usage of a standard prohibiting “ . . . reserving unjust, unreasonable and oppressive” rent and terms of renting was constitutionally definite so as to satisfy the demands of due process. Commenting on the Levy Leasing Co. decision, the Court in Small Co. v. American Sugar Refining Co., 267 U.S. 233, 241-242, 45 S.Ct. 295, 298, 69 L.Ed. 589 (1925), stated:

Real property, particularly in a city, comes to have a recognized value, which is relatively stable and easily ascertained. It also comes to have a recognized rental value — the measure of compensation commonly asked and paid for its occupancy and use — the amount being fixed with due regard to what is just and reasonable between landlord and tenant in view of the value of the property and the outlay which the owner must make for taxes and other current charges. These are matters which in the course of business come to be fairly well settled and understood. A standard thus developed and accepted in actual practice, when made the test of compliance with legislative commands or prohibitions, usually meets the requirement of due process of law in point of being sufficiently definite and intelligible.

By demanding prices far in excess of a property’s fair market value and far in excess of prices for comparable housing available to white citizens the seller ventures into the realm of unreasonableness. The statute does not mandate that blacks are to be sold houses at the exact same price and on the exact same terms as are available to white citizens. Reasonable differentials due to a myriad of permissible factors can be expected and are acceptable. But the statute does now countenance the efforts of those who would exploit a discriminatory situation under the guise of artificial differences.

The practices that have befallen plaintiffs have long besieged other black citizens. In the year 1962 the United States Commission on Civil Rights recognized that:

Throughout the country large groups of American citizens — mainly Negroes, but other minorities too — are denied an equal opportunity to choose where they will live. Much of the housing market is closed to them for reasons unrelated to their ■ personal worth or ability to pay. New housing, by and large, is available only to whites. And in the restricted market that is open to them, Negroes generally must pay more for equivalent housing than do the favored majority. “The dollar in a dark hand” does not “have the same purchasing power as a dollar in a white hand.” 9

When a seller in the black market demands exorbitant prices and onerous sales terms relative to the terms and prices available to white citizens for comparable housing, it cannot be stated *334that a dollar in the hands of a black man will purchase the same thing as a dollar in the hands of a white man. Such practices render plaintiffs’ dollars less valuable than those of white citizens — a situation that was spawned by a discarded system of slavery and is nurtured by vestiges of that system. Courts in applying section 1982 must be vigilant in preventing toleration of this deplorable circumstance.

We hold accordingly that plaintiffs state a claim under section 1982 since they allege that (1) as a result of racial residential segregation dual housing markets exist and (2) defendant sellers took advantage of this situation by demanding prices and terms unreasonably in excess of prices and terms available to white citizens for comparable housing. If the plaintiffs sustain the burden of proof on these elements they make out a prima, facie case, whereupon, as recently made clear by the Supreme Court, the burden of proof shifts to the defendants “to articulate some legitimate, nondiscriminatory reason” for the price and term differential. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).

II

Having determined the substantive framework upon which an action may be brought pursuant to section 1982 we address ourselves to the correctness of the directed verdict entered in favor of the defendants at the close of plaintiffs’ case in chief. Keeping in mind that we must view all the evidence, plus the reasonable inferences to be drawn therefrom, in the light most favorable to the plaintiffs, Hannigan v. Sears, Roebuck & Co., 410 F.2d 285, 287 (7th Cir.), cert. denied, 396 U.S. 902, 90 S.Ct. 214, 24 L.Ed.2d 178 (1969), we hold that the admitted evidence was sufficient to establish a prima facie case under section 1982 pursuant to the exploitation theory of liability and, accordingly, warranted submission of the issues to the jury for resolution. Moreover, we rule that on the basis of the evidence erroneously excluded by the trial judge the plaintiffs have made out a case for section 1982 liability under the so-called traditional theory of discrimination and that, therefore, a directed verdict for defendants on this separate ground was likewise improperly granted. To demonstrate the error committed we proceed to review the evidence adduced at trial.

There was sufficient evidence to establish, prima facie, the existence of dual housing markets in the Chicago metropolitan area as a result of racial residential segregation. Dr. Karl E. Taeuber, a professor of sociology, testified as an expert witness about the results of his extensive research on the dispersion of population in the city of Chicago. His statistical analysis indicated that Chicago was a highly segregated city and that there was a very high degree of reidential segregation between whites and blacks. Moreover, despite the decrease of white population in the city accompanied by a rapid increase of the black population, the supply of new housing available to whites was much greater than that available to blacks. Also, during the pertinent time period the expanding suburban housing market was limited almost completely to whites. Dr. Taeuber testified that the main obstacle to the movement of blacks into the white areas of Chicago and suburban residential areas was the high degree of discrimination against blacks in the white market. As a result the supply of housing available to whites was far greater in both absolute and relative terms to the supply of new housing available to blacks.

Plaintiffs produced additional proof concerning the existence of dual housing markets through the testimony of another expert witness, Scott Tyler, a real estate broker and appraiser with many years of experience in the real estate business in Chicago. Significantly, defendants seemingly concede the existence of a dual housing market in Chicago. Nor do we think it beyond the strictures of judicial notice to observe that there *335exists in Chicago and its environs a high degree of racial residential segregation. 10

We turn to the second element of the case, whether there was a sufficient pri-ma facie showing of an unreasonable differential in price and sale terms between the housing sold or offered by defendants to plaintiffs and comparable housing available to whites. With respect to this phase plaintiffs offered the appraisal testimony of five expert witnesses; the testimony of two, however, was excluded from the jury by the trial judge. Concerning the testimony of Scott Tyler and John Hank which the judge did allow, both witnesses utilized the market data method of appraisal in arriving at a fair market value of a sampling of plaintiffs’ homes. The fair market value appraisals were based on sales of comparable homes in all-white neighborhoods which were located in close geographical proximity to plaintiffs’ homes and had similar communal amenities such as transportation, schools, churches, and quality of neighborhood. Both witnesses testified that the comparable white housing was sold at prices substantially below the prices commanded by defendants. Expert witness Tyler’s appraisals demonstrated that on the average the contract prices charged by defendants exceeded the fair market value of the homes by $6,508, or 34.5 percent. Expert witness Hank was of the opinion that on the average defendants’ prices exceeded fair market value by $4,209, or 20.6 percent. Plaintiffs adduced additional appraisal testimony from Paul Underwood who had been an appraiser for a savings and loan association which had loaned money to one of the defendant land companies for construction of houses sold to plaintiffs. Pursuant to this financing arrangement Underwood appraised thirty of defendants’ houses for which he testified that the sales price charged by defendants, on the average, exceeded fair market value by $4,296, or 20.9 percent.11 Based on the foregoing we think a jury could reasonably reach the conclusion that defendants’ price differential was unreasonably in excess of fair market value and prices available to white citizens for comparable housing. Accordingly, there was sufficient evidence on the price differential to send the case to the jury.

Turning to the issue of the reasonableness of the sale terms differential the evidence at trial indicated that defendants refused to sell other than on land contract to plaintiffs.12 There was testimony to the .effect that defendants refused to participate in any sales *336through a deed and mortgage arrangement despite the prospective buyer’s ability to obtain mortgage financing. The evidence indicates that plaintiffs were of the equivalent economic status as many whites who routinely obtained mortgages to finance the purchase of houses and that a competing construction company in the black market sold the vast majority of its homes on deed and mortgage to blacks similarly situated economically to plaintiffs. Also, the evidence demonstrates that some plaintiffs made down payments of up to forty-five percent of the contract price— well above the amount needed to qualify for mortgages — and yet defendants refused to deal on terms other than contract.13 On the basis of this evidence it could reasonably be inferred that defendants utilized the contract method of sales to facilitate their exorbitant pricing practices14 and not because of significant differences between plaintiffs’ economic status and that of whites similarly situated who were able to utilize mortgage financing. Hence, a jury could find that the different treatment accorded plaintiffs by defendants’ sales terms was discriminatory.

Furthermore, plaintiffs offered evidence, which was erroneously excluded by the trial judge, sufficient to establish a prima, facie case pursuant to the traditional theory of discrimination. Under that theory there must be a showing of “treating, in similar circumstances, a member or members of one race different from the manner in which members of another race are treated.” Love v. DeCarlo Homes, Inc., 482 F.2d 613, 615 (5th Cir. 1973). That is, a black prospective buyer of a dwelling demonstrates discriminatory conduct if he proves that an owner utilizes different pricing policies with respect to blacks and whites similarly situated.

The proffered evidence which was rejected at trial involved the sales of new houses to white buyers in Deer-field, Illinois and Park Forest South, Illinois, both being suburban residential developments. The sellers of the houses in Deerfield were Universal Construction Company and a joint venture comprised of the Deerfield Home Development Company and Universal Builders, Inc., while the houses in Park Forest South were sold by the P. F. S. Development Company. The plaintiffs contended that these corporations were owned and managed by the same persons that owned and managed defendants and that these persons were engaged in discrimi*337natory conduct through the use of different pricing practices in Deerfield and Park Forest South from those used in pricing defendants’ houses. The trial judge excluded the evidence on two grounds: (1) the plaintiffs were not allowed to disregard the separate identities of the three corporations and (2) the lack of a basis of comparability for homes in Deerfield and Park Forest South with those of plaintiffs in Chicago. We rule that the trial court erred in excluding plaintiffs’ evidence on the Deerfield and Park Forest South pricing policies.

Defendants’ argument that the corporate formalities should not be disregarded in the context of the issues is without worth. As this court has stated, corporate formalities “may be disregarded in exceptional situations where it otherwise would present an obstacle to the due protection or enforcement of public or private rights.” Ohio Tank Car Co. v. Keith Ry. Equip. Co., 148 F.2d 4, 6 (7th Cir. 1945), cert. denied, 326 U.S. 730, 66 S.Ct. 38, 90 L.Ed. 434 (1945). In situations such as here, where common ownership and management exists, corporate formalities must not be rigidly adhered to when inquiry is made of civil rights violations. Accordingly, the objection raised by defendants presents no obstacles to the comparison of defendants’ pricing policies in Chicago with the pricing policies implemented in Deerfield and Park Forest South by the other selling organizations.

Turning to the second reason given for excluding the Deerfield and Park Forest South evidence we find that there was sufficient comparability between those operations and defendants’ sales in the relevant black market so as to render the exclusion an abuse of discretion. Factors such as geographical proximity, the date of the sale, type of construction, and materials used are factors going only to the weight to be accorded the evidence by the jury and do not go to its admissibility. See, e. g., Winston v. United States, 342 F.2d 715, 721 (9th Cir. 1965); United States v. 124.84 Acres of Land, Warrick County, Ind., 387 F.2d 912 (7th Cir. 1968). Plaintiffs met the requirement of sufficient comparability through the use of a comparative statistical analysis of accounting data reflecting defendants’ sales operations and pricing policies in Chicago with those of Deerfield and Park Forest South. We find plaintiffs’ statistical evidence to have been sufficiently competent; see United States v. Certain Interests in Property, etc., 326 F.2d 109 (2d Cir. 1964), cert. denied, 377 U.S. 978, 84 S.Ct. 1884, 12 L.Ed.2d 747 (1964), and probative of plaintiffs’ claim that defendants sold houses to blacks on price terms different from those they sold to white buyers similarly situated. Indeed, as the Eighth Circuit has stated, “statistical evidence can make a prima facie case of discrimination.” Carter v. Gallagher, 452 F.2d 315, 323 (8th Cir. 1972), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972).15

Plaintiffs’ expert witnesses testified that in the housing industry prices are established on the basis of direct costs, consisting generally of the investment in the land and the cost of construction, including materials. Once the direct costs are calculated, an allowance for overhead and profit is added to the direct costs to attain the sales price. The allowance for overhead and profit is the gross profit on sales which plaintiffs’ expert witness testimony indicated was generally found in the real estate industry to be from fifteen to nineteen per*338cent of the sales price.16 Defendants testified to the utilization of this method of pricing in their sales to plaintiffs; however, the statistical evidence presented by plaintiffs tends to refute that assertion.17

Viewing the evidence, first in absolute terms, it shows that defendants’ pricing policy in Chicago produced an average gross profit substantially in excess of that produced by the Deerfield and Park Forest South operations.18 In relative percentage terms defendants reaped a gross profit of 27.6 percent of sales, well above the industry figure of 14 to 19 percent and considerably in excess of the gross profit percentages of the Deerfield and Park Forest South operations.19 Second, analyzing the same data in terms of the mark-up of the sales price over the direct costs, it is clear that the mark-up — as a percentage of direct costs — was much higher in the sales to plaintiffs than in the sales to white buyers in Deerfield and Park Forest South.20

The statistical evidence substantiates the claim that defendant's priced plaintiffs’ houses much higher relative to direct costs than the houses sold in Deer-field and Park Forest South and belies any contention that defendants utilized *339comparable pricing policies in their sales to plaintiffs. Plaintiffs presented Dr. Richard Freeman, a Professor of Economics, who analyzed the statistical data pertaining to the difference in gross profits between defendants’ sales to plaintiffs and the suburban operations. His analysis demonstrated that the difference in pricing practices was due to the race of the buyer and not economic factors.21

In summary, it is difficult as a prima facie matter to infer that the substantial disparity between the pricing practices of defendants in the black real estate market and the pricing practices in the white market was attributable to some factor other than the race of the buyers. Whether defendants afforded plaintiffs the “same right” to purchase housing as offered white buyers was, based on the foregoing evidence, an issue to be properly submitted to the jury.

Ill

Plaintiffs also raise numerous procedural issues arising out of the course of this protracted litigation. They claim that the district court erred in: (1) denying plaintiffs’ motion to amend their complaint by adding additional defendants; (2) requiring class members affirmatively to request inclusion as plaintiffs; (3) dismissing with prejudice class members who failed to answer interrogatories or to appear for depositions; (4) the method of disposing of the second count of defendants’ amended counterclaim; and (5) erred in the assessment of costs against plaintiffs.

One month prior to when the trial was scheduled to begin and four months before its actual commencement the plaintiffs moved under Fed.R. Civ.P. 15(a) to amend their complaint adding as parties defendant certain persons who were the principal officers, directors, and shareholders of the defendants.22 The district court denied plaintiffs’ motion on the ground that it was not timely. We are not convinced that plaintiffs’ motion would have delayed the trial. Moreover, absent a showing of prejudice, a mere delay in the commencement of the action should not ordinarily operate to preclude a motion to amend the complaint. See Middle Atlantic Utilities Co. v. S. M. W. Development Co., 392 F.2d 380, 384 (2d Cir. 1968). Plaintiffs’ requested amendment would not have prejudiced the defendant corporations nor the persons sought to be added to the action as defendants. Those persons, as officers, di*340rectors, and shareholders of the closely held defendant corporations were on constructive notice of the action and indeed were active participants in it since its inception. Under these circumstances it was error to not grant plaintiffs leave to amend. See Gifford v. Wichita Falls and Southern Ry. Co., 224 F.2d 374, 376 (5th Cir. 1955), cert. denied, 350 U.S. 895, 76 S.Ct. 153, 100 L.Ed. 787 (1955).23

Plaintiffs next contend that it was error for the trial judge to require members of the plaintiff class to request inclusion in the class. Pursuant to Fed. R.Civ.P. 23, Judge Will ordered that all class members be notified that they would be included in the class unless they expressly requested exclusion. When the case came before Judge Perry a second notice was ordered to be sent to the plaintiffs advising them that unless they affirmatively requested inclusion in the class they would be excluded. It cannot be doubted that the sending of this second and conflicting notice was confusing to a class member and was an unsound practice. Moreover, the requirement of an affirmative request for inclusion in the class is contrary to the express language of Rule 23(c)(2)(B) that “the notice shall advise each member that . . . the judgment, whether favorable or not, will include all members who do not request exclusion.” In light of the confusion created by the conflicting notices and the clear language of Rule 23(c)(2)(B), the trial court erred in ordering the second notice requiring an affirmative response for inclusion. See Korn v. Franchard Corp., 456 F.2d 1206, 1210 (2d Cir. 1972). Accordingly, all members who did not request exclusion are proper parties to the judgment in this action.

Addressing ourselves to the issue of the propriety of dismissing with prejudice class members who failed to answer interrogatories or appear for; depositions, we think the district judge erred. In Brennan v. Midwestern United Life Ins. Co., 450 F.2d 999 (7th Cir. 1971), cert. denied, 405 U.S. 921, 92 S.Ct. 957, 30 L.Ed.2d. 792 (1972), we held that in appropriate circumstances absent class members may be propounded written interrogatories on a showing that the information requested is necessary to trial preparation and that the interrogatory is not designed “as a tactic to take undue advantage of the class members or as a stratagem to reduce the number of claimants.” 450 F.2d at 1005. The party seeking discovery has the burden of demonstrating its merits.

With respect to the written interrogatories propounded in the case at bar we fail to discern any attempt by the trial court in reaching á determination as to whether the information sought was necessary, or whether the interrogatories were a mere stratagem to diminish class membership. There was no showing on the merits of defendants’ request. More important, in view of the substantive nature of the questions propounded we do not believe that defendants could have met the burden of demonstrating the meritorious nature of their request.24

*341The taking of depositions of absent class members is — as is true of written interrogatories — appropriate in special circumstances. And, not unlike the use of interrogatories, the party-seeking the depositions has the burden of showing necessity and absence of any motive to take undue advantage of the class members. However, in light of the nature of the deposition process — namely, the passive litigants are required to appear for questioning and are subject to often stiff interrogation by opposing counsel with the concomitant need for counsel of their own — we are of the view that the burden confronting the party seeking deposition testimony should be more severe than that imposed on the party requesting permission to use interrogatories. The record in this action is devoid of any showing that defendants met that burden.

The plaintiffs contend that the district court erred in its disposition of the second count of defendants’ counterclaim. At the time the directed verdict for defendants was granted the district court, with defendants’ consent, ordered dismissal of defendants’ counterclaim subject to automatic reinstatement in the event plaintiffs appealed from the district court’s grant of directed verdict for defendants. Plaintiffs urge this conditional dismissal was improper and that the counterclaim should be dismissed with prejudice and without qualification.

We agree with plaintiffs that dismissal subject to reinstatement if plaintiffs appealed was a highly improper attempt at coercing plaintiffs into waiving their right to appeal and as such was error. See, e. g., Worcester v. C. I. R., 370 F.2d 713, 718 (1st Cir. 1966); North Carolina v. Pearce, 395 U.S. 711, 724, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In addition, the record indicates that, contrary to defendants’ assertion, plaintiffs’ objection to this conditional dismissal was timely.

Defendants’ counterclaim does not arise “out of the transaction or occurrence that is the subject matter of the opposing party’s claim . . . .” Fed.R.Civ.P. 13(a). The counterclaim invokes matters unrelated to plaintiffs’ civil rights claims, involving alleged tor-tious acts by certain of the plaintiffs which acts are claimed to have begun in 1968, post-dating the violations of plaintiffs’ civil rights by as much as ten years. Therefore the counterclaim was permissive under Fed.R.Civ.P. 13(b), rather than compulsory and as such must be supported by federal subject matter jurisdiction independent of the jurisdiction supporting plaintiffs’ complaint. Diamond v. Terminal Railway Alabama State Docks, 421 F.2d 228, 235-236 (5th Cir. 1970). There is here no discernible independent federal jurisdiction over defendants’ proffered counterclaim ; accordingly it should have been dismissed with prejudice.

Lastly, plaintiffs take issue with the trial judge’s statement on assessment of costs:

I am taking the matter of apportioning costs under advisement. If there is no appeal, I expect to order each of the parties to bear their own respective costs. If there is an appeal, I will enter the order as I see fit, in accordance with the law.

In response to an inquiry by plaintiffs’ counsel, the trial judge commented that, “there would be no costs assessed against those who do not appeal.”

Although the district court has discretionary power to assess costs, the action it took was improper and clearly an abuse of discretion. As we previously indicated, any attempt by a court at preventing an appeal is unwarranted and cannot be tolerated. The *342separate order of the district court on costs is reversed and, pursuant to Fed.R.Civ.P. 54(d), each side is directed to bear its own costs.

We reverse the judgment of the district court and remand for a new trial under Circuit Rule 23.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT CHISICK’S MOTION TO DISMISS AND DENYING DEFENDANT CHISICK’S MOTION TO COMPEL ARBITRATION

CARTER, District Judge.

Before the Court is Defendant Brian Chisick’s motions to dismiss parts of the Class Plaintiffs complaint and to compel arbitration. After reviewing the moving, opposing, and replying papers, and for the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART the motion to DISMISS and DENIES the motion to compel.

*249I.

BACKGROUND

Defendants First Alliance Mortgage Company of California, First Alliance Corporation of Delaware, First Alliance Mortgage Company of Minnesota, and First Alliance Portfolio Services of Nevada (collectively, First Alliance) have been in the business of subprime mortgage lending since 1971. First Alliance’s customers generally were borrowers who would have had difficulty obtaining loans from conventional sources because of poor credit ratings or insufficient credit histories. The loans, many of which were refinancings by homeowners who had developed significant equity in their homes, typically were secured by the borrowers’ first mortgages. As of 1999, First Alliance or affiliated entities were licensed to operate in eighteen states and the District of Columbia and serviced nearly $900 million in loans.

Chisick is the founder and Chief Executive Officer of First Alliance. In recent years, a number of lawsuits were filed against First Alliance, alleging that its lending practices violated various consumer protection laws. First Alliance’s lending practices became the focus of national publicity when the New York Times and the television program “20/20” carried stories that exposed the company’s allegedly deceptive practices and highlighted the number of lawsuits that had been filed against it. A few days later, on March 23, 2000, First Alliance filed a voluntary petition under Chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 101-1330, because of the costs associated with the growing number of lawsuits.

Class Plaintiffs filed their complaint and proof of claim in the bankruptcy court. The bankruptcy court denied class certification. This Court reversed, withdrew the reference to the bankruptcy court, and consolidated the claims into this action.

II.

MIOTION TO DISMISS

A. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a complaint can be dismissed when the plaintiffs allegations fail to state a claim upon which relief can be granted. The court must construe the complaint liberally, and dismissal should not be granted unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); see Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1988) (stating that a complaint should be dismissed only when it lacks a “cognizable legal theory” or sufficient facts to support a cognizable legal theory). The court must accept as true all factual allegations in the complaint and must draw all reasonable inferences from those allegations, construing the complaint in the light most favorable to the plaintiff. Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir.1993); Balistreri, 901 F.2d at 699; NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). Dismissal without leave to amend is appropriate only when the court is satisfied that the deficiencies of the complaint could not possibly be cured by amendment. Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir.1996); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987).

B. Truth in Lending Act Claim

Class Plaintiffs first claim for relief is brought pursuant to the Truth in Lending Act (TILA), 15 U.S.C. §§ 1639-1640. TILA gives a private right of action against “any creditor who fails to comply *250with any requirement imposed under this part....” Id. “The term ‘creditor’ refers only to a person who both (1) regularly extends, whether in connection with loans, sales of property or services, or otherwise, consumer credit ... and (2) is the person to whom the debt arising from the consumer credit transaction is initially payable. ...” 15 U.S.C. § 1602(f).

Here, Chisick is not a creditor because he is not the original person to whom the debt is payable, the Individual Defendants cannot be creditors. Accordingly, Chi-sick’s motion to dismiss Class Plaintiffs’ first claim for relief is GRANTED.

C. Unfair Business Practices Claim

Chisick argues that California’s claims for Unfair Competition Law (UCL), Cal.Bus. & ProfCode §§ 17200, 17500, must fail because they are predicated on Federal Truth in Lending Act (TILA) claims. Chisick cites Redhouse v. Quality Ford Sales, Inc., 511 F.2d 230, 236 (10th Cir.1975) to show that a defendant not liable under the TILA cannot be liable under a state regulatory scheme. Red-house, however, does not apply here. The state statute applicable there was the 1953 Utah Uniform Consumer Credit Code(UUCCC), as amended, Utah Code Ann. § 70B-1-101 et seq. (repealed 1985). Redhouse, F.2d at 233. That statute specifically required that a party be a “creditor” as defined by the TILA and the UUCCC. See Redhouse, 511 F.2d at 241 (Doyle, J., dissenting) (“Since it is questionable as to whether Mr. Redd was a creditor under the Act and the regulations, it would seem proper to excuse Mr. Redd from liability personally.”)

In effect, “the UCL borrows violations of other laws ... and makes those unlawful practices actionable under the UCL.” Lazar v. Hertz Corp., 69 Cal. App.4th 1494, 82 Cal.Rptr.2d 368, 375 (1999).1 However, the fact that a claim is not successful under TILA does not mean that it necessarily fails under the UCL. While it is true that a business practice cannot be unfair if it has been determined by the legislature to be lawful, id. at 376, that does not mean that a practice is not unfair unless the legislature has specifically enumerated it as prohibited. Indeed, “[t]he only defense available is that the conduct is not unlawful within” the meaning of the underlying statute. Hobby Indus. Assn. of Am., Inc. v. Younger, 101 Cal.App.3d 358, 161 Cal.Rptr. 601, 609 (1980). Chisick does not assert that the alleged conduct was lawful, but only that the TILA enforcement scheme will not hold them liable under federal law. That does not prevent holding him liable under the state’s enforcement scheme for unfair business practices.

D. Preemption

Chisick next argues that the TILA preempts state laws. Preemption can occur in two circumstances. “When Congress intends federal law to ‘occupy the field,’ state law in that area is preempted.” Crosby v. National Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 2293, 147 L.Ed.2d 352 (2000). State law is also preempted whenever state law conflicts with federal law making it impossible for a person to comply with both. Id.

Here, the TILA neither expressly nor impliedly occupies the whole field of regulation. Black v. Financial Freedom Senior Funding Corp., 92 Cal.App.4th 917, 112 Cal.Rptr.2d 445, 460 (2001); see also Williams v. First Gov’t Mortgage and Investors Corp., 176 F.3d 497, 500 (D.C.Cir.1999). TILA in fact specifically allows for *251state law to supplement its enforcement scheme, stating that it does “not annul, alter, or affect the laws of any State relating to the disclosure of information in connection with credit transactions, except to the extent that those laws are inconsistent with the provisions of this subchapter and then only to the extent of the inconsistency.” 15 U.S.C. § 1610(a)(1).

Chisick argues that the additional penalties available under Section 17200 are inconsistent with the TILA. Additional penalties are not inconsistent with TILA, but merely provide greater protection to consumers. Section 17200 does not provide inconsistent disclosure requirements. See Black, 112 Cal.Rptr.2d at 460 (“an inconsistency or contradiction with federal law does not exist merely because the state requires disclosures in addition to those required by and under TILA.”)

TILA and Section 17200 do not conflict either. Id. at 461. A Section 17200 claim merely advances the TILA purpose of meaningful disclosure of credit terms by providing increased penalties for non-disclosure. Id.; see also Williams, 176 F.3d at 500.

Accordingly, Chisick’s motion to dismiss Class Plaintiffs’ second and third claims for relief is DENIED.

E. Unconscionability

Chisick contends that there is no independent cause of action for unconscionability, but that it is merely a defense to a breach of contract action. The California Supreme Court, however, allowed such an affirmative claim to go forward in Perdue v. Crocker National Bank, 38 Cal.3d 913, 216 Cal.Rptr. 345, 356, 702 P.2d 503 (1985), where it was one of the underlying claims in a complaint for unjust enrichment. Thus, while unconscionability cannot stand alone, it can be the basis for another claim. Because an unconscionable contract would amount to an unfair business practice under Business and Professions Code Section 17200, which Class Plaintiffs allege, their claim for unconscio-nability cannot be dismissed.

III.

MOTION TO COMPEL

Chisick seeks to compel arbitration of the class claims against him. In cases governed by the Federal Arbitration Act (FAA) of 1947, federal courts are empowered to compel arbitration and to stay actions arising out of disputes that are subject to an arbitration agreement. 9 U.S.C. § 3. A party aggrieved by another party’s failure to submit a dispute to arbitration may petition a district court for an order compelling arbitration. 9 U.S.C. § 4.

However, arbitration is not favored in the bankruptcy context. “The decision to compel or deny arbitration is discretionary with the bankruptcy judge. A bankruptcy judge does not abuse his discretion when he refuses to compel arbitration where the determination in such a proceeding would affect the amount, existence and priority of claims to be paid out of the general funds and, thus, involve the interests of other creditors.” In re F & T Contractors, Inc., 649 F.2d 1229, 1232 (6th Cir.1981).2

*252Here, arbitration would undermine the goals of the bankruptcy code and negatively affect the creditors of the First Alliance estate.3 Litigation of the most substantial claims against the First Alliance are set to be tried by this Court in April. Throughout the Court’s administration of this ease, it has sought to provide a single forum for adjudication of the claims, in order to facilitate either a global settlement or a speedy adjudication of the claims. This assures that the estate’s assets are not dissipated, frustrating the interests of First Alliance’s creditors and interest-holders.4 At the debtor’s request, the Court has found several of the individual defendants to be subject to this Court’s jurisdiction, and has ordered them brought into this matter. Separating Mr. Chisick now to arbitration would frustrate those purposes and likely require the involvement of many of the same witnesses and parties, including the debtors, further dissipating the estate’s assets. This would frustrate the purpose of the bankruptcy laws of preserving the assets of the estate. The Court therefore exercises its discretion to DENY Chisick’s motion to compel arbitration.

IY.

CONCLUSION

For the foregoing reasons, Chisick’s motion to dismiss Class Plaintiffs’ first claim for violation of the Truth in Lending Act is GRANTED. Chisick’s motion to dismiss Class Plaintiffs remaining claims is DENIED. Chisick’s motion to compel arbitration is DENIED.

IT IS SO ORDERED.

Botsford, J.

The Commonwealth, acting through the Attorney General, commenced this consumer protection enforcement action against the defendant Fremont Investment & Loan and its parent company, Fremont General Corporation (collectively, Fremont), claiming that Fremont, in originating and servicing *735certain “subprime”3 mortgage loans between 2004 and 2007 in Massachusetts, acted unfairly and deceptively in violation of G. L. c. 93A, § 2. Fremont appeals from a preliminary injunction granted by a judge in the Superior Court in favor of the Attorney General that restricts, but does not remove, Fremont’s ability to foreclose on loans with features that the judge described as “presumptively unfair.” All of the loans at issue are secured by mortgages on the borrowers’ homes.

Based on the record before him, the judge concluded that the Attorney General had established a likelihood of success on the merits of her claim that in originating home mortgage loans with four characteristics that made it almost certain the borrower would not be able to make the necessary loan payments, leading to default and then foreclosure, Fremont had committed an unfair act or practice within the meaning of G. L. c. 93A, § 2. Fremont filed petitions for interlocutory relief pursuant to G. L. c. 231, § 118, first par., in the Appeals Court from the original preliminary injunction order and a subsequent order entered by the judge that modified the original preliminary injunction. A single justice of the Appeals Court declined to reverse either order and, at the request of Fremont, reported the matter to the Appeals Court. We granted the Commonwealth’s application for direct appellate review.4 We affirm the motion judge’s grant of the preliminary injunction, as modified.

1. Background,5 Fremont is an industrial bank chartered by *736the State of California. Between January, 2004, and March, 2007, Fremont originated 14,578 loans to Massachusetts residents secured by mortgages on owner-occupied homes. Of the loans originated during that time period, roughly 3,000 remain active and roughly 2,500 continue to be owned or serviced by Fremont.6 An estimated fifty to sixty per cent of Fremont’s loans in Massachusetts were subprime.7 Because subprime borrowers present a greater risk to the lender, the interest rate charged for a subprime loan is typically higher than the rate charged for conventional or prime mortgages.8 After funding the loan, Fremont generally sold it on the secondary market, which largely insulated Fremont from losses arising from borrower default.9 Fremont General Corporation, Annual Report (Form 10-K) 1, 6 (Mar. 6, 2006).

In originating loans, Fremont did not interact directly with *737the borrowers; rather, mortgage brokers acting as independent contractors would help a borrower select a mortgage product, and communicate with a Fremont account executive to request a selected product and provide the borrower’s loan application and credit report. If approved by Fremont’s underwriting department, the loan would proceed to closing and the broker would receive a broker’s fee.

Fremont’s subprime loan products offered a number of different features to cater to borrowers with low income. A large majority of Fremont’s subprime loans were adjustable rate mortgage (ARM) loans, which bore a fixed interest rate for the first two or three years, and then adjusted every six months to a • considerably higher variable rate for the remaining period of what was generally a thirty-year loan.10 Thus, borrowers’ monthly mortgage payments would start out lower and then increase substantially after the introductory two-year or three-year period. To determine loan qualification, Fremont generally required that borrowers have a debt-to-income ratio of less than or equal to fifty per cent — that is, that the borrowers’ monthly debt obligations, including the applied-for mortgage, not exceed one-half their income. However, in calculating the debt-to-income ratio, Fremont considered only the monthly payment required for the introductory rate period of the mortgage loan, not the payment that would ultimately be required at the substantially higher “fully indexed” interest rate.11 As an additional feature to attract subprime borrowers, who typically had little or no savings, Fremont offered loans with no down payment. Instead of a down payment, Fremont would finance the full value of the property, resulting in a “loan-to-value ratio” approaching one hundred per cent. Most such financing was accomplished through *738the provision of a first mortgage providing eighty per cent financing and an additional “piggy-back loan” providing twenty per cent.12

As of the time the Attorney General initiated this case in 2007, a significant number of Fremont’s loans were in default.13 An analysis by the Attorney General of ninety-eight of those loans indicated that all were ARM loans with a substantial increase in payments required after the first two (or in a few cases, three) years, and that ninety per cent of the ninety-eight had a one hundred per cent loan-to-value ratio.

On March 7, 2007, Fremont executed a “stipulation and consent to the issuance of an order to cease and desist” (consent agreement) with the Federal Deposit Insurance Corporation (FDIC), settling charges of unsound banking practices brought by that agency. The consent agreement ordered Fremont, inter alla, to cease and desist from originating ARM products to subprime borrowers in ways described as unsafe and unsound, including making loans with low introductory rates without considering borrowers’ ability to pay the debt at the fully indexed rate, and with loan-to-value ratios approaching one hundred per cent. In entering into the consent agreement, Fremont did not admit to any wrongdoing.

On or about July 10, 2007, Fremont entered into a term sheet letter agreement (term sheet agreement) with the Massachusetts Attorney General, agreeing to give the Attorney General ninety days’ notice before foreclosing on any Massachusetts residential mortgage loan. If the Attorney General objected, Fremont agreed to negotiate in good faith to resolve the objection, possibly by modifying the loan agreement. If no resolution could be reached, *739the Attorney General was granted an additional fifteen days in which to determine whether to seek an injunction.

As it turned out, the Attorney General objected to every proposed foreclosure that Fremont identified except those where the home was not owner-occupied and Fremont had been unable to contact the borrower. On October 4, 2007, the Attorney General filed this action. On December 10, 2007, Fremont exercised its right to terminate the term sheet agreement, on the grounds that the Attorney General had “no intention of engaging in a meaningful review process on a borrower-by-borrower basis.” However, in the same letter Fremont stated that it would continue to seek to avoid foreclosure and to provide the Attorney General with loan files prior to foreclosure. The Attorney General then filed the motion for preliminary injunctive relief.

The judge granted a preliminary injunction in a memorandum of decision dated February 25, 2008. In his decision, the judge found no evidence in the preliminary injunction record that Fremont encouraged or condoned misrepresentation of borrowers’ incomes on stated income loans, or that Fremont deceived borrowers by concealing or misrepresenting the terms of its loans. However, the judge determined that the Attorney General was likely to prevail on the claim that Fremont’s loans featuring a combination of the following four characteristics qualified as “unfair” under G. L. c. 93A, § 2: (1) the loans were ARM loans with an introductory rate period of three years or less; (2) they featured an introductory rate for the initial period that was at least three per cent below the fully indexed rate; (3) they were made to borrowers for whom the debt-to-income ratio would have exceeded fifty per cent had Fremont measured the borrower’s debt by the monthly payments that would be due at the fully indexed rate rather than under the introductory rate; and (4) the loan-to-value ratio was one hundred per cent, or the loan featured a substantial prepayment penalty (defined by the judge as greater than the “conventional prepayment penalty” defined in G. L. c. 183C, § 2) or a prepayment penalty that extended beyond the introductory rate period.

The judge reasoned that Fremont as a lender should have recognized that loans with the first three characteristics just described were “doomed to foreclosure” unless the borrower *740could refinance the loan at or near the end of the introductory rate period, and obtain in the process a new and low introductory rate.14 The fourth factor, however, would make it essentially impossible for subprime borrowers to refinance unless housing prices increased, because if housing prices remained steady or declined, a borrower with a mortgage loan having a loan-to-value ratio of one hundred per cent or a substantial prepayment penalty was not likely to have the necessary equity or financial capacity to obtain a new loan. The judge stated that, “[gjiven the fluctuations in the housing market and the inherent uncertainties as to how that market will fluctuate over time ... it is unfair for a lender to issue a home mortgage loan secured by the borrower’s principal dwelling that the lender reasonably expects will fall into default once the introductory period ends unless the fair market value of the home has increased at the close of the introductory period. To issue a home mortgage loan whose success relies on the hope that the fair market value of the home will increase during the introductory period is as unfair as issuing a home mortgage loan whose success depends on the hope that the borrower’s income will increase during that same period.”

The judge concluded that the balance of harms favored granting the preliminary injunction, and that the public interest would be served by doing so. The injunction he granted requires Fremont to do the following: (1) to give advance notice to the Attorney General of its intent to foreclose on any of its home mortgage loans; and (2) as to loans that possess each of the four characteristics of unfair loans just described and that are secured by the borrower’s principal dwelling (referred to in the injunction as “presumptively unfair” loans), to work with the Attorney General to “resolve” their differences regarding foreclosure — presumably through a restructure or workout of the loan. If the loan cannot be worked out, Fremont is required to obtain approval for foreclosure from the court. The judge made *741clear that the injunction in no way relieved borrowers of their obligation ultimately to prove that a particular loan was unfair and foreclosure should not be permitted, or their obligation to repay the loans they had received.

In March, 2008, approximately one month after the issuance of the preliminary injunction, Fremont announced it had entered into an agreement with Carrington Mortgage Services, LLC, to sell certain rights to service mortgage loans. In response, the Attorney General sought a modification of the injunction to require that any assignment, sale, or transfer of ownership rights or servicing obligations by Fremont be conditioned on the assignee’s or purchaser’s acceptance of the obligations imposed by the preliminary injunction. The judge granted this relief with respect to all future assignments or sales that Fremont might make, modifying the original preliminary injunction in a separate order dated March 31, 2008 (modification order).15

2. Standard of review. We review the grant or denial of a preliminary injunction to determine whether the judge abused his discretion, that is, whether the judge applied proper legal standards and whether there was reasonable support for his evaluation of factual questions. Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615 (1980). Before issuing a preliminary injunction, the judge must determine that the plaintiff has shown a likelihood of success on the merits of the case at trial. Commonwealth v. Mass. CRINC, 392 Mass. 79, 87 (1984), citing Packaging Indus. Group, Inc. v. Cheney, supra at 617. If the plaintiff is the Attorney General, the judge must then determine “that the requested order promotes the public interest, or, alternatively, that the equitable relief will not adversely affect the public.” Commonwealth v. Mass. CRINC, supra at 89. “[Wjhile weight will be accorded to the exercise of discretion by the judge below, if the order was predicated solely on documentary evidence we may draw our own conclusions from the record.” Packaging Indus. Group, Inc. v. Cheney, supra at 616.

*7423. Discussion. Fremont argues that the judge committed two “fundamental” errors of law in concluding that the Attorney General was likely to prevail on the merits of her c. 93A claim: first, the judge in effect, and improperly, applied the provisions of the Massachusetts Predatory Home Loan Practices Act, G. L. c. 183C, to Fremont’s loans, even though the loans are not subject to c. 183C; and second, the judge failed to recognize that under G. L. c. 93A, § 3, Fremont’s loans are exempt from c. 93A because all of Fremont’s challenged loan terms were permitted under the Federal and Massachusetts laws and regulatory standards governing mortgage lenders. Fremont also contends that the judge erred in determining that the public interest would be served by the preliminary injunction order. We address these arguments separately below. Before doing so, we consider a basic claim that lies underneath all of Fremont’s legal challenges to the injunction.

a. Retroactive application of unfairness standards. Fremont’s basic contention is that, while the terms of its subprime loans may arguably seem “unfair” within the meaning of G. L. c. 93A, § 2, if judged by current standards applicable to the mortgage lending industry, they did not violate any established concept of unfairness at the time they were originated; the judge, in Fremont’s view, applied new rules or standards for defining what is “unfair” in a retroactive or ex post facto fashion — a result that is not in accord with the proper interpretation of c. 93A, § 2, and also represents “bad policy,” because (among other reasons) lenders cannot know what rules govern their conduct, which will reduce their willingness to extend credit, hurting Massachusetts consumers. We do not agree that the judge applied a new standard retroactively.

General Laws c. 93A, § 2 (a), makes unlawful any “unfair or deceptive acts or practices in the conduct of any trade or commerce.” Chapter 93A creates new substantive rights and, in particular cases, “mak[es] conduct unlawful which was not unlawful under the common law or any prior statute.” Kattar v. Demoulas, 433 Mass. 1, 12 (2000), quoting Commonwealth v. DeCotis, 366 Mass. 234, 244 n.8 (1974). The statute does not define unfairness, recognizing that “[tjhere is no limit to human inventiveness in this field.” Kattar v. Demoulas, supra at 13, *743quoting Levings v. Forbes & Wallace, Inc., 8 Mass. App. Ct. 498, 503 (1979). What is significant is the particular circumstances and context in which the term is applied. See Kerlinsky v. Fidelity & Deposit Co., 690 F. Supp. 1112, 1119 (D. Mass. 1987), aff’d, 843 F.2d 1383 (1st Cir. 1988). It is well established that a practice may be deemed unfair if it is “within at least the penumbra of some common-law, statutory, or other established concept of unfairness.” PMP Assocs., Inc. v. Globe Newspaper Co., 366 Mass. 593, 596 (1975). See Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 562-563 (2008), and cases cited.

Fremont highlights the judge’s statement that at the time Fremont made the loans in question between 2004 and March of 2007, loans with the four characteristics the judge identified as unfair were not considered by the industry or more generally to be unfair; Fremont argues this acknowledgment by the judge is proof that the judge was creating a new definition or standard of unfairness. The argument lacks merit. First, the judge’s statement that Fremont’s combination of loan features were not recognized to be unfair does not mean the converse: that the loans were recognized to be fair. More to the point, at the core of the judge’s decision is a determination that when Fremont chose to combine in a subprime loan the four characteristics the judge identified, Fremont knew or should have known that they would operate in concert essentially to guarantee that the borrower would be unable to pay and default would follow unless residential real estate values continued to rise indefinitely16 — an assumption that, in the judge’s view, logic and experience had already shown as of January, 2004, to be unreasonable. The judge concluded that the Attorney General was likely to prove that Fremont’s actions, in originating loans with terms that in combination would lead predictably to the consequence of the borrowers’ default and foreclosure, were within established concepts of unfairness at the time the loans were made, and thus in violation of G. L. c. 93A, § 2. The record supports this conclusion.

Fremont correctly points out that as a bank in the business of *744mortgage lending, it is subject to State and Federal regulation by a variety of agencies.17 Well before 2004, State and Federal regulatory guidance explicitly warned lending institutions making subprime loans that, even if they were in compliance with banking-specific laws and regulations and were “underwrit[ing] loans on a safe and sound basis, [their] policies could still be considered unfair and deceptive practices” under G. L. c. 93A. Consumer Affairs and Business Regulation, Massachusetts Division of Banks, Subprime Lending (Dec. 10, 1997).18 More particularly, the principle had been clearly stated before 2004 that loans made to borrowers on terms that showed they would be unable to pay and therefore were likely to lead to default were unsafe and unsound, and probably unfair. Thus, an in-teragency Federal guidance published January 31, 2001, jointly by the Office of the Comptroller of the Currency (OCC), the Board of Governors of the Federal Reserve System, the FDIC, and the Office of Thrift Supervision, stated: “Loans to borrowers who do not demonstrate the capacity to repay the loan, as structured, from sources other than the collateral pledged are generally considered unsafe and unsound” (emphasis supplied).19 *745Expanded Guidance for Subprime Lending Programs at 11 (Jan. 31, 2001). On February 21, 2003, one year before the first of Fremont’s loans at issue, the OCC warned that certain loans could be unfair to consumers:

“When a loan has been made based on the foreclosure value of the collateral, rather than on a determination that the borrower has the capacity to make the scheduled payments under the terms of the loan, based on the borrower’s current and expected income, current obligations, employment status, and other relevant financial resources, the lender is effectively counting on its ability to seize the borrower’s equity in the collateral to satisfy the obligation and to recover the typically high fees associated with such credit. Not surprisingly, such credits experience foreclosure rates higher than the norm.

“[S]uch disregard of basic principles of loan underwriting lies at the heart of predatory lending . . . .”

OCC Advisory Letter, Guidelines for National Banks to Guard Against Predatory and Abusive Lending Practices, AL 2003-2 at 2 (Feb. 21, 2003).20,21

The record here suggests that Fremont made no effort to *746determine whether borrowers could “make the scheduled payments under the terms of the loan.” Rather, as the judge determined, loans were made in the understanding that they would have to be refinanced before the end of the introductory period. Fremont suggested in oral argument that the loans were underwritten in the expectation, reasonable at the time, that housing prices would improve during the introductory loan term, and thus could be refinanced before the higher payments began. However, it was unreasonable, and unfair to the borrower, for Fremont to structure its loans on such unsupportable optimism. As a bank and mortgage lender, Fremont had been warned repeatedly before 2004 (in the context of guidance on loan safety and soundness) that it needed to consider the performance of its loans in declining markets. See, e.g., Consumer Affairs and Business Regulation, Massachusetts Division of Banks, Sub-prime Lending (Dec. 10, 1997) (“[Mjost subprime loans have been originated during robust economic conditions and have not been tested by a downturn in the economy. Management must ensure that the institution has adequate financial and operational strength to address these concerns effectively”).22 Fremont cannot now claim that it was taken by surprise by the effects of *747an economic decline, or that it should not be held responsible.

Finally, the conclusion that Fremont’s loans featuring the four characteristics at issue violated established concepts of unfairness is supported by the consent agreement that Fremont entered into with the FDIC on March 7, 2007, the date Fremont stopped making loans.23 The consent agreement contains no admission of wrongdoing by Fremont, and we do not consider it as evidence of liability on Fremont’s part. However, we view it as evidence of existing policy and guidance provided to the mortgage lending industry. The fact that the FDIC ordered Fremont to cease and desist from the use of almost precisely the loan features that are included in the judge’s list of presumptively unfair characteristics indicates that the FDIC considered that under established mortgage lending standards, the marketing of loans with these features constituted unsafe and unsound banking practice with clearly harmful consequences for borrowers. *748Such unsafe and unsound conduct on the part of a lender, insofar as it leads directly to injury for consumers, qualifies as “unfair” under G. L. c. 93A, § 2.

We turn to the specific challenges to the judge’s order that Fremont raises.

b. General Laws c. 183C. General Laws c. 183C, the Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004 (act), prohibits a lender from making a “high-cost home mortgage loan”24 unless the lender reasonably believes at the time the loan is made that the borrower “will be able to make the scheduled payments to repay the home loan based upon a consideration of the [borrower’s] current and expected income, current and expected obligations, employment status, and other financial resources other than the borrower’s equity in the dwelling which secures repayment of the loan.” G. L. c. 183C, § 4. This section further states, however, that a borrower is presumed to be able to repay the loan if the borrower’s debt-to-income ratio, calculated based on the fully indexed rate associated with an ARM loan, does not exceed fifty per cent of the borrower’s verified monthly gross income. Id. at § 4, second par. The act prohibits a high-cost home mortgage loan from containing any provision for prepayment fees or penalties. G. L. c. 183C, § 5. Chapter 183C expressly provides that a violation of the statute constitutes a violation of G. L. c. 93A. G. L. c. 183C, § 18 (a).

Fremont’s mortgage loans were not “high cost home mortgage loans” governed by G. L. c. 183C, as the judge recognized. Fremont contends, however, that the judge improperly interpreted c. 183C to reach Fremont’s loans, and thereby violated basic rules of statutory construction that prohibit inferring a legislative intent to reach conduct that the statute’s unambiguous language clearly does not cover.

Fremont’s argument lacks merit. Even though the loans have different terms from Fremont’s, the conduct the act prohibits, *749and deems a violation of G. L. c. 93A, is similar to the central element of unfairness the judge found in Fremont’s lending practices: the origination of a home mortgage loan that the lender should recognize at the outset the borrower is not likely to be able to repay. See G. L. c. 183C, § 4. That the Legislature chose in the act to focus specifically on home loan mortgages with different terms and features from Fremont’s is not disposi-tive; the question is whether the act may be read to establish a concept of unfairness that may apply in similar contexts. As stated by the single justice of the Appeals Court, the judge appropriately could and did “look to Chapter 183C as an established, statutory expression of public policy that it is unfair for a lender to make a home mortgage loan secured by the borrower’s principal residence in circumstances where the lender does not reasonably believe that the borrower will be able to make the scheduled payments and avoid foreclosure.”25

c. General Laws c. 93A, § 3. Fremont argues that the Commonwealth’s claim is barred by G. L. c. 93A, § 3, because Fremont’s actions were permitted by the law as it existed at the time it originated the loans.26 We disagree.

General Laws c. 93A, § 3, provides:

“Nothing in this chapter shall apply to transactions or *750actions otherwise permitted under laws as administered by any regulatory board or officer acting under statutory authority of the commonwealth or of the United States.

“For the purpose of this section, the burden of proving exemptions from the provisions of this chapter shall be upon the person claiming the exemptions.”

This provision must be read together with G. L. c. 93A, § 2. That section “created new substantive rights,” and thus “[t]he fact that particular conduct is permitted by statute or by common law principles should be considered, but it is not conclusive on the question of unfairness.” Schubach v. Household Fin. Corp., 375 Mass. 133, 137 (1978), quoting Commonwealth v. DeCotis, 366 Mass. 234, 244 n.8 (1974). See Kattar v. Demou-las, 433 Mass. 1, 13 (2000) (“Legality of underlying conduct is not necessarily a defense to a claim under c. 93A”). A defendant’s burden in claiming the exemption is “a difficult one to meet. To sustain it, a defendant must show more than the mere existence of a related or even overlapping regulatory scheme that covers the transaction. Rather, a defendant must show that such scheme affirmatively permits the practice which is alleged to be unfair or deceptive” (emphasis in original). Fleming v. National Union Fire Ins. Co., 445 Mass. 381, 390 (2005), quoting Bierig v. Everett Sq. Plaza Assocs., 34 Mass. App. Ct. 354, 367 n.14 (1993).

The judge concluded, as have we, that the Attorney General is likely to succeed on her claim that Fremont’s practice of originating loans bearing the particular combination of four features identified in the preliminary injunction was unfair. To carry its burden under G. L. c. 93A, § 3, of demonstrating that a regulatory scheme “affirmatively permits the practice which is alleged to be unfair,” Fremont must show that some regulatory scheme affirmatively permitted the practice of combining all of those features. Fremont has not done so. Rather, it cites authority demonstrating, it asserts, that each of the four features was permitted by statute and regulatory authorities. Assuming, without deciding, that Fremont is correct that every feature was affirmatively permitted separately, it was Fremont’s choice to *751combine them into a package that it should have known was “doomed to foreclosure”; the relevant question is whether some State or Federal authority permitted that combination. No authority did.27 Cf. Commonwealth v. DeCotis, 366 Mass. 234, 239-240 (1974) (defendant lessors and managers of mobile home park failed to show that under laws as “as administered” by local board of health they were permitted to charge resale fee [emphasis in original]). .

d. Public interest. Because the Attorney General, in the name of the Commonwealth, brings this case to carry out her statutory mandate to enforce the Consumer Protection Act, it is necessary to consider whether the preliminary injunction order promotes the public interest. Commonwealth v. Mass. CRINC, 392 Mass. 79, 88-89 (1984). Fremont argues that it does not, primarily because in Fremont’s view, the order imposes new standards on lending practices that were considered permissible and acceptable when the loans were made. The result, Fremont claims, will be an unwillingness on the part of lenders to extend credit to Massachusetts consumers because they will be unwilling to risk doing business in an environment where standards are uncertain and the rules may change after the fact.

Our previous discussion, and rejection, of Fremont’s claim that the judge retroactively applied new unfairness standards disposes of Fremont’s public interest argument; we do not accept the premise that, in concluding that Fremont is likely to be found to have violated established concepts of unfairness, the judge’s order has created an environment of uncertainty that lenders will shun. The injunction order crafted by the judge strikes a balance between the interests of borrowers who face foreclosure and loss of their homes under home loan mortgage terms that are at least presumptively unfair, on the one hand; and the interest of the lender in recovering the value of its loans to borrowers who received the benefit of those loaned funds *752and continue to have a contractual obligation to repay, on the other. The order does not bar foreclosure as a remedy for the lender, nor does it relieve borrowers of their obligations ultimately to repay the loans. Rather, it requires, where the mortgage loan terms include all four features deemed presumptively unfair, that Fremont explore alternatives to foreclosure in the first instance (a step that Fremont has indicated its desire to take in any event), and then seek approval of the court. If the court does not approve the foreclosure, that decision merely leaves the preliminary injunction in place until the Commonwealth has an opportunity to try to prove that the particular loan at issue actually violated c. 93A — a burden that is never shifted to Fremont. We conclude the order serves the public interest.

4. Conclusion. A judgment is to be entered affirming the grant of the preliminary injunction and remanding the case to the Superior Court for further proceedings.

So ordered.

OPINION

IKUTA, Circuit Judge:

Watoshina Lynn Compton appeals the district court’s dismissal of her claim under section 480-2 of the Hawaii Revised Statutes, which authorizes consumers to “bring an action based upon unfair or deceptive acts or practices.” Haw.Rev.Stat. § 480-2(d) (referred to herein as a UDAP claim). Because Compton’s complaint adequately alleges that unfair and deceptive acts by Bank of America Corporation (BAC)1 caused an injury resulting in damages, we reverse the district court.

*1051I

We assume the following facts taken from the complaint are true for the purpose of our review. See Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1055 n. 1 (9th Cir.2008).

In 2003, Compton purchased a piece of real property through a privately funded construction loan. Compton later sought to refinance this loan and, in May 2006, executed a promissory note and mortgage giving Countrywide Home Loans, Inc., a security interest in the property. After Compton refinanced her mortgage and before the events at issue in this case, BAC acquired Countrywide.

After making timely loan payments for more than two years, Compton began suffering financial difficulties due to a decline in her fiberglass pool business. In August 2008, while still making timely payments, Compton contacted BAC to inquire about modifying her loan to lower the monthly payments. The BAC representative informed her that she would not qualify for a loan modification unless she was at least 30 days behind on her loan payments. Compton continued making timely payments for another eight months.

In May 2009, Compton stopped making loan payments and subsequently applied for a loan modification. According to her complaint, Compton’s simple request to modify her loan resulted in a twenty-month entanglement in a Kafkaesque nightmare. Compton alleges that during the period from May 2009 to August 2010, she indefatigably sought a loan modification, while BAC intentionally frustrated her efforts, gave her misleading and erroneous advice, and imposed a never-ending list of new requirements and demands, despite knowing that a loan modification agreement would never be forthcoming. After Compton submitted her first loan modification application, the complaint alleges, a series of ever-changing BAC representatives told Compton that the application was under review, continued to demand further documentation, failed to respond to her requests for updates, and finally told her that her loan modification application file had been closed. Her second loan modification application met with the same fate. In August 2009, BAC approved her third loan modification application and sent Compton a modification agreement. After Compton signed the modification agreement, had it notarized, and returned it to the bank, a BAC representative informed her that the agreement was incomplete due to a problem with the notary’s signature block. Compton submitted re-notarized documents, but a BAC representative told Compton that the notary stamp was still deficient and she would have to submit a fourth modification application. After Compton submitted this fourth application, BAC representatives assured Compton that the bank would not commence foreclosure proceedings while the modification process was underway. Despite these repeated assurances, on August 26, 2010, Compton learned that a notice of foreclosure had been recorded against her property. When she contacted BAC regarding the foreclosure notice, she learned that her fourth application had been denied due to “lack of documentation” and her file closed on August 19, 2010. Several months later, when Compton tried to apply for a fifth time, a different representative informed Compton that the foreclosure notice rendered her ineligible for a loan modification.

On March 28, 2011, Compton filed a complaint in the district court alleging a UDAP claim under section 480-2(d), among other claims, and seeking injunctive relief and monetary damages. Compton alleged that BAC engaged in unfair and *1052deceptive acts and practices, including: (1) misinforming her that only borrowers who were at least 30 days behind on their mortgage payments were eligible for loan modifications, although BAC does not, in fact, have such a requirement; (2) purposefully delaying her efforts to negotiate a loan modification and repeatedly terminating her loan modification requests; (3) misrepresenting the length of time it would take to process her loan modification, and knowingly and purposefully drawing out the modification process so that she would end up in foreclosure; and (4) misrepresenting that foreclosure proceedings would not be brought against her so long as her loan modification application remained pending, and then backdating paperwork so it would falsely appear that BAC commenced foreclosure proceedings only after denying her loan modification application. Compton alleges that as a result of BAC’s misrepresentations and delays, she spent almost two years in a futile effort to modify her mortgage loan and, as a result of failing to obtain a modification, ended up in foreclosure.

The defendants filed a motion to dismiss Compton’s complaint for failure to state a claim.

The district court granted the defendants’ motion as to all claims. The district court dismissed Compton’s UDAP claim without prejudice for failure to state a claim. Compton v. Countrywide Fin. Corp., Civ. No. 11-00198 SOM-BMK, 2011 WL 2746807, at *6 (D.Haw. July 13, 2011). Compton elected not to amend her complaint, and the district court entered final judgment on August 16, 2011. Compton has appealed the judgment only as to the dismissal of her UDAP claim.

II

Hawaii enacted section 480-2 “in broad language in order to constitute a flexible tool to stop and prevent fraudulent, unfair or deceptive business practices for the protection of both consumers and honest businessmen.” Ai v. Frank Huff Agency, Ltd., 61 Haw. 607, 616, 607 P.2d 1304 (1980), overruled on other grounds by Robert’s Haw. Sch. Bus, Inc. v. Laupahoe-hoe Transp. Co., 91 Hawaii 224, 982 P.2d 853 (1999). State courts construe this section liberally, Hawaii Cmty. Fed. Credit Union v. Keka, 94 Haw. 213, 229, 11 P.3d 1 (2000), in light of the state legislature’s intention to “‘encourage those who have been victimized by persons engaging in unfair or deceptive acts or practices to prosecute their claim,’ thereby affording ‘an additional deterrent to those who would practice unfair and deceptive business acts,’ ” Zanakis-Pico v. Cutter Dodge, Inc., 98 Hawaii 309, 317, 47 P.3d 1222 (2002) (quoting S.R. No. 600, at 1111 (1969) (Comm.Rep.); H.R. No. 661, at 882-83 (1969) (Comm Rep.)).

Under section 480-2(a), “unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.” Haw.Rev.Stat. § 480-2(a).2 Hawaii courts have held that “[a] practice is unfair when it offends established public policy and when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” Balthazar v. Verizon Haw., Inc., 109 Hawaii 69, 77, 123 P.3d 194 (2005) (alteration in original) (quoting Keka, 94 Hawaii at 228, 11 P.3d 1).

Although the statute does not de-fihe the term “deceptive,” Hawaii courts *1053construe it “in accordance with judicial interpretations of similar federal antitrust statutes.” Courbat v. Dahana Ranch, Inc., 111 Hawaii 254, 261, 141 P.3d 427 (2006) (quoting Haw.Rev.Stat. § 480-3); see also Haw.Rev.Stat. § 480-2(b) (requiring courts to construe the statute with “due consideration” to FTC rules, regulations, and decisions). Under this interpretation, “a deceptive act or practice is ‘(1) a representation, omission, or practice[ ] that (2) is likely to mislead consumers acting reasonably under the circumstances [where] (3)[ ] the representation, omission, or practice is material.’ ” Courbat, 111 Hawaii at 262, 141 P.3d 427 (alterations in original) (quoting FTC v. Verity Int’l, Ltd., 443 F.3d 48, 63 (2d Cir.2006)). “A representation, omission, or practice is considered ‘material’ if it involves ‘information that is important to consumers and, hence, likely to affect their choice of, or conduct regarding, a product.’ ” Id. (quoting Novartis Corp. v. FTC, 223 F.3d 783, 786 (D.C.Cir.2000)). This inquiry is objective — the test is “whether the act or omission ‘is likely to mislead consumers.’ ” Id. (quoting Verity Int’l, 443 F.3d at 63). Material misrepresentations made during the course of loan negotiations can constitute an unfair or deceptive act within the meaning of section 480-2(a). See Keka, 94 Hawaii at 229, 11 P.3d 1.

Finally, the Hawaii Supreme Court has determined that “a loan extended by a financial institution is activity involving ‘conduct of any trade and commerce.’ ” Id. at 227, 11 P.3d 1; see Haw.Rev.Stat. § 480-2(a) (making unfair or deceptive acts or practices unlawful only when they arise “in the conduct of any trade or commerce”).

Section 480-13(b)(l) provides that “[a]ny consumer who is injured by any unfair or deceptive act or practice” that violates section 480-2 “[m]ay sue for damages sustained by the consumer.” Haw.Rev.Stat. § 480-13(b)(l). “[L]oan borrowers are ‘consumers’ within the meaning of [the statute].” Keka, 94 Hawaii at 227, 11 P.3d 1. To obtain relief under section 480 — 13(b)(1), a consumer must establish three elements: “(1) a violation of [section] 480-2; (2) injury to the consumer caused by such a violation; and (3) proof of the amount of damages.” Davis v. Wholesale Motors, Inc., 86 Hawaii 405, 417, 949 P.2d 1026 (Ct.App.1997) (citing Ai, 61 Haw. at 617, 607 P.2d 1304, and Cieri v. Leticia Query Realty, Inc., 80 Hawaii 54, 61-62, 905 P.2d 29 (1995)).

Although the statute does not define either “injury” or “damages,” see Zanakis-Pico, 98 Hawaii at 316, 47 P.3d 1222, Hawaii courts have not set a high bar for proving these elements. The plaintiff must show only that the alleged violations of section 480-2(a) caused “private damage,” Kekauoha-Alisa v. Ameriquest Mortg. Co. (In re Kekauoha-Alisa), 674 F.3d 1083, 1092 (9th Cir.2012) (quoting Ai, 61 Haw. at 618, 607 P.2d 1304), and that the plaintiffs injury is “fairly traceable to the defendant’s actions,” Flores v. Rawlings Co., 117 Hawaii 153, 167 n. 23, 177 P.3d 341 (2008) (quoting Cieri, 80 Hawaii at 66, 905 P.2d 29). Because deceptive acts “do their damage when they induce action that a consumer would not otherwise have undertaken,” a consumer who can show “a resulting injury” is entitled to damages even if the consumer has not actually consummated a particular transaction. Zanakis-Pico, 98 Hawaii at 317, 47 P.3d 1222. For instance, a consumer could recover damages for “out-of-pocket expenses for a money order, gasoline, parking, and wear and tear on [an] automobile that resulted from *1054[an] unfair business practice.”3 Id. at 319, 47 P.3d 1222 (citing Wiginton v. Pac. Credit Corp., 2 Haw.App. 435, 444, 634 P.2d 111 (1981)). A plaintiffs “allegation that he has, as a ‘direct and proximate result’ of [defendant’s] violation [of section 480-2], ‘sustained special and general damages’ suffices to withstand a motion to dismiss under Rule 12(b)(6).” Jenkins v. Commonwealth Land Title Ins. Co., 95 F.3d 791, 799 (9th Cir.1996); see also Zanakis-Pico, 98 Hawaii at 330, 47 P.3d 1222 (holding that a plaintiff adequately alleges special damages by claiming “special damages in such amounts as will be proved at trial”).

Ill

We review de novo the district court’s dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th Cir.2011). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “[L]abels and conclusions” or “a formulaic recitation of the elements of a cause of action” do not suffice. Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

A

The district court gave two reasons for its conclusion that Compton failed to state a claim under sections 480-2 and 480-13. First, it stated that “lenders generally owe no duty to a borrower ‘not to place borrowers in a loan even where there was a foreseeable risk borrowers would be unable to repay,’ ” Compton, 2011 WL 2746807, at *6 (quoting Marzan v. Bank of Am., 779 F.Supp.2d 1140, 1152 (D.Haw.2011)), and a lender has no duty to determine whether a borrower is qualified for a loan, id. This reasoning is not directly applicable to Compton’s UDAP claim, which was based on allegations that BAC “made material [mis]representations and purposefully delayed Plaintiffs modification efforts,” id. (internal quotation marks omitted), not on the theory that BAC had placed her in a loan for which she was not qualified.

Second, the district court stated that, “as a general rule, a financial institution owes no duty of care to a borrower when the institution’s involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money.” Id. (quoting Nymark v. Heart Fed. Sav. & Loan Ass’n, 231 Cal.App.3d 1089, 1096, 283 Cal.Rptr. 53 (1991)). Under this reasoning, the district court implicitly held that Compton could not state a claim for unfair or deceptive acts and practices unless her complaint alleged that BAC owed her a duty of care, and that she could not make such an allegation absent a showing that BAC’s conduct exceeded the scope of behaving as “a mere lender of money.”

We disagree with the district court’s rationale, which seems to be based on a long line of federal district court decisions holding that a lender’s decision to approve a loan to a borrower who could not afford the payments does not constitute a cogni*1055zable claim under sections 480-2 and 480-13, absent allegations that the lender exceeded the scope of its role as a lender of money and owed the borrower a duty of care. See, e.g., Teaupa v. U.S. Nat’l Bank N.A., 836 F.Supp.2d 1083, 1099 (D.Haw.2011) (relying on this theory to dismiss a UDAP claim for failure to state a claim); Marzan, 779 F.Supp.2d at 1152 (same); see also Swartz v. City Mortg., Inc., 911 F.Supp.2d 916, 942 (D.Haw.2012) (relying on this theory to grant summary judgment in favor of the lender); Wood v. Greenberry Fin. Servs., Inc., 907 F.Supp.2d 1165, 1184 (D.Haw.2012) (same); Stanton v. Bank of Am., N.A., 834 F.Supp.2d 1061, 1082 (D.Haw.2011) (same).

None of these cases is directly applicable to Compton’s complaint, which did not allege that BAC allowed her to obtain a loan for which she was unqualified. It is understandable, however, how the district courts’ reasoning in these prior cases misled the district court here. Had these courts applied the plain language of section 480-2, they might well have concluded that a lender’s failure in the ordinary course of business to make an adequate assessment of a borrower’s qualifications does not constitute an unfair or deceptive practice, although this precise question is not before us. But rather than take this straightforward approach, the opinions listed above (among others) rested their analysis on common law tort principles, reasoning that: (1) a.- lender generally “owes no duty of care to a borrower when the institution’s involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money,” Marzan, 779 F.Supp.2d at 1152 (quoting Nymark, 231 Cal.App.3d at 1096, 283 Cal.Rptr. 53); (2) therefore “lenders generally owe no duty to a borrower ‘not to place borrowers in a loan even where there was a foreseeable risk borrowers would be unable to repay,’ ” id. (quoting McCarty v. GCP Mgmt., LLC, Civ. No. 10-00133 JMS/KSC, 2010 WL 4812763, at *6 (D.Haw. Nov. 17, 2010)); and thus (3) absent an allegation that the lender owed the borrower a common law duty of care (which could not occur unless the lender exceeded its role as a lender), an allegation that the lender allowed an unqualified borrower to obtain a loan does not state a claim under sections 480-2 and 480-13, see id. Logically, this reasoning is based on the unstated premise that a lender cannot be held liable under sections 480-2 and 480-13 unless the lender owes the borrower a common law duty of care.

Contrary to this line of federal district court opinions, borrowers are not obliged to show that the lender owed the borrower a common law duty of care to state a claim under sections 480-2 or 480-13. Nothing in the plain language of sections 480-2 or 480-13 requires a plaintiff to make such an allegation. And we have not identified any decision of a Hawaii court interpreting sections 480-2 and 480-13 as imposing such a requirement. The Hawaii Supreme court’s decision in Keka, 94 Hawaii 213, 11 P.3d 1, is to the contrary. In considering a UDAP claim against a lender, Keka held that the borrowers raised a genuine issue of material fact regarding whether a violation of section 480-2 occurred simply by swearing in an affidavit that during loan negotiations the lender had misrepresented the interest rate that would apply to the loan. Id. at 228-29, 11 P.3d 1. Keka, therefore, strongly supports the conclusion that section 480-2 does not require a borrower to allege that a lender “exceeded] the scope of its conventional role as a mere lender of money,” Nymark, 231 Cal.App.3d at 1096, 283 CahRptr. 53, and thus may have owed the borrower an independent duty of care.

Accordingly, we conclude that district courts evaluating whether a bor*1056rower’s complaint states a claim under sections 480-2 and 480-13 against a lender need only address whether the complaint adequately alleges that the lender used unfair or deceptive acts in its relationship with the borrower, without looking to negligence law to determine whether the lender breached a common law duty of care. Rather than requiring proof of a common law duty of care, section 480-2 is better interpreted as imposing a statutory duty on lenders not to engage in “unfair or deceptive acts or practices in the conduct of any trade or commerce.” Haw.Rev. Stat. § 480-2(a). Thus a borrower need only allege that a lender has breached that statutory duty (in a way that caused private damages) in order to state a claim under sections 480-2 and 480-13. See Davis, 86 Hawaii at 417, 949 P.2d 1026. While courts may well conclude that a borrower’s allegation that a lender failed “to determine the creditworthiness and ability to repay by a borrower” does not breach the statutory duty imposed by section 480-2, Marzan, 779 F.Supp.2d at 1152 (quoting Sheets v. DHI Mortg. Co., Civ. No. 09-1030 LJO DLB, 2009 WL 2171085, at *4 (E.D.Cal. July 20, 2009)), a borrower’s failure to allege that the lender’s conduct occurred outside the course of ordinary lender activity or that the lender owed a duty of care to the borrower is not fatal to a UDAP claim.

B

Here, the district court dismissed Compton’s UDAP claim solely on the ground that Compton failed to allege that BAC exceeded its role as a lender and owed an independent duty of care to Compton. This reasoning was erroneous. But because we may affirm the district court on “any ground supported by the record,” Thompson v. Paul, 547 F.3d 1055, 1059 (9th Cir.2008), we next consider whether BAC can nevertheless prevail on its motion to dismiss.

As explained above, in order to state a claim under sections 480-2 and 480-13, Compton must plausibly allege that (1) she is a “consumer,” see Haw.Rev.Stat. §§ 480-2(d), 480 — 13(b); (2) BAC violated section 480-2(a), prohibiting “unfair or deceptive acts or practices in the conduct of any trade or commerce,” id. § 480-2(a); and (3) she has suffered an injury resulting in damages, see id. § 480 — 13(b)(1); Za-nakis-Pico, 98 Hawaii at 316, 47 P.3d 1222.

As a threshold matter, it is undisputed that Compton qualifies as a “consumer,” and that BAC’s lending and loan modification activities involve the “conduct of any trade and commerce.” See Keka, 94 Hawaii at 227, 11 P.3d 1 (internal quotation marks omitted).

We also conclude that Compton has sufficiently alleged that BAC engaged in an “unfair or deceptive act or practice” for the purpose of withstanding a motion to dismiss. As previously noted, Compton does not base her UDAP claim on allegations that BAC failed to determine whether she would be financially capable of repaying the loan. Rather, the gist of Compton’s complaint is that BAC misled her into believing that BAC would modify her loan and would not commence foreclosure proceedings while her loan modification request remained under review. As a result of these misrepresentations, Compton engaged in prolonged negotiations, incurred transaction costs in providing and notarizing documents, and endured lengthy delays. The complaint’s description of BAC’s misleading behavior sufficiently alleges a “representation, omission, or practice” that is likely to deceive a reasonable consumer. Courbat, 111 Hawaii at 262, 141 P.3d 427. Moreover, BAC’s misrepresentations and misleading *1057conduct were material, in that they involved information important to a consumer attempting to negotiate with a mortgagor to prevent foreclosure. Id.

We next turn to the question whether the complaint adequately alleged an injury resulting in damages. In the section relating to the UDAP claim, the complaint merely states that Compton suffered “considerable hardship” due to spending “almost two years attempting to modify her mortgage loan” and ending up in foreclosure. This section also incorporates by reference the preceding paragraphs in the complaint. The complaint’s factual allegations detail the various transaction costs Compton incurred in attempting to meet BAC’s never-ending and ever-changing requirements. These allegations of the damages proximately caused by the lender’s deceptive acts, namely the costs suffered by Compton in connection with the failed loan negotiations, are sufficiently pleaded to survive a motion to dismiss.

In addition, the complaint states that had Compton been able to enter into a loan modification agreement, she would not have defaulted or faced foreclosure, and the foreclosure caused her to incur attorney fees, late payment payments, and lost business income. These allegations were made in connection with a breach of contract claim, however, and the complaint does not state that BAC’s misleading loan modification practices resulted in the foreclosure or consequential damages at issue. Accordingly, the complaint does not allege a basis for Compton to recover equitable remedies such as relief from foreclosure through her UDAP claim.

Given Hawaii’s low bar for showing damages, we conclude that for the purpose of a motion to dismiss Compton’s allegations that BAC’s deceptive conduct caused her to waste two years of effort and incur multiple transaction costs are sufficient to state an injury that caused damages. See Jenkins, 95 F.3d at 799 (holding that a complaint’s mere conclusory statement that the plaintiff has “sustained special and general damages” due to defendant’s violation of section 480-2 suffices to withstand a motion to dismiss).

Accordingly, Compton has “nudged” her UDAP claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. We therefore REVERSE the district court’s dismissal of Compton’s UDAP claim and REMAND for proceedings consistent with this opinion.

Botsford, J.

In this case, we address the propriety of a foreclosure by power of sale undertaken by a mortgage holder that did not hold the underlying mortgage note. A judge in the Superior Court preliminarily enjoined the defendant Federal National Mortgage Association (Fannie Mae) from proceeding with a summary process action to evict the plaintiff, Henrietta Eaton, from her home, following a foreclosure sale of the property *571by the defendant Green Tree Servicing, LLC (Green Tree), as mortgagee. The judge ruled that Eaton likely would succeed on the merits of her claim that for a valid foreclosure sale to occur, both the mortgage and the underlying note must be held by the foreclosing party; and that because Green Tree stipulated that it held only Eaton’s mortgage, the foreclosure sale was void, and the defendants therefore were not entitled to evict Eaton. Pursuant to G. L. c. 231, § 118, first par., the defendants petitioned a single justice of the Appeals Court for relief from the preliminary injunction. The single justice denied the petition and reported his decision to a panel of that court. We transferred the case to this court on our own motion.

For the reasons we discuss herein, we conclude as follows. A foreclosure sale conducted pursuant to a power of sale in a mortgage must comply with all applicable statutory provisions, including in particular G. L. c. 183, § 21, and G. L. c. 244, § 14. These statutes authorize a “mortgagee” to foreclose by sale pursuant to a power of sale in the mortgage, and require the “mortgagee” to provide notice and take other steps in connection with the sale. The meaning of the term “mortgagee” as used in the statutes is not free from ambiguity, but we now construe the term to refer to the person or entity then holding the mortgage and also either holding the mortgage note or acting on behalf of the note holder.2 Further, we exercise our discretion to treat the construction announced in this decision as a new interpretation of the relevant statute, only to apply to foreclosures under the power of sale where statutory notice is provided after the date of this decision. We vacate the preliminary injunction and remand the case to the Superior Court for further proceedings consistent with this opinion.3

*5721. Background..4 On September 12, 2007, Eaton refinanced the mortgage on her home in the Roslindale section of Boston (Roslindale property) by executing a promissory note payable to BankUnited, FSB (BankUnited, or lender), for $145,000. That same day, she also executed a mortgage, referred to in the mortgage itself as a “[s]ecurity [instrument.” The mortgage is separate from, but by its terms clearly connected to, the promissory note. The parties to the mortgage are Eaton as the “[borrower,” BankUnited as the “[l]ender,” and Mortgage Electronic Registration Systems, Inc. (MERS),5 as the “mortgagee.”6

Under the mortgage executed by Eaton, MERS as mortgagee (or its assignee) holds legal title to the Roslindale property with power of sale “solely as nominee” of the lender Bank-United (or its assignee). However, “if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right to exercise any or all of those interests, including, but not limited to, the right to foreclose *573and sell the Property; and to take any action required of Lender ”7

The mortgage also contains a series of covenants that run exclusively between BanlcUnited as lender and Eaton. The final covenant, entitled “Acceleration; Remedies,” empowers the lender, on default by Eaton, to “invoke the STATUTORY POWER OF SALE and any other remedies permitted by applicable law.” In this regard, the covenant obligates the lender, in invoking the statutory power of sale, to mail a copy of a notice of sale to Eaton.

On April 22, 2009, MERS assigned its interest as mortgagee to Green Tree and recorded the assignment in the Suffolk County registry of deeds. The record contains no evidence of a corresponding transfer of the note. The note was indorsed in blank by BankUnited on an undetermined date.7 8

Later in 2009, after Eaton failed to make payments on the note, Green Tree, as assignee of MERS, moved to foreclose on her home through exercise of a power of sale contained in the mortgage. A foreclosure auction was conducted in November, 2009; Green Tree was the highest bidder. The identity of the note holder at the time of the foreclosure sale is not known from the record. On November 24, 2009, Green Tree assigned the rights to its bid to Fannie Mae, and a foreclosure deed was recorded in the Suffolk County registry of deeds.

On January 25, 2010, Fannie Mae commenced a summary process action in the Boston division of the Housing Court Department to evict Eaton. Eaton filed a counterclaim, arguing *574that the underlying foreclosure sale was invalid because Green Tree did not hold Eaton’s mortgage note at the time of the foreclosure sale and therefore lacked the requisite authority to foreclose on her equity of redemption in the Roslindale property. A Housing Court judge subsequently granted a sixty-day stay of the summary process action to give Eaton an opportunity to seek relief in the Superior Court.9 The Housing Court judge also ordered Eaton to make use and occupancy payments during the pendency of her action. On April 8, 2011, Eaton filed a complaint in the Superior Court for injunctive and declaratory relief. The complaint sought a declaration that the foreclosure sale of Eaton’s home and the subsequent foreclosure deed were null and void, and that Eaton was the owner in fee simple of the Roslindale property; a preliminary injunction to stay the summary process action in the Housing Court; and a permanent injunction barring Fannie Mae from taking steps to obtain possession of or convey the Roslindale property. For the purposes of Eaton’s motion for a preliminary injunction only, the defendants stipulated that Green Tree did not hold Eaton’s mortgage note at the time of the foreclosure. After hearing, the Superior Court judge (motion judge) allowed the motion and preliminarily enjoined Fannie Mae from proceeding with Eaton’s eviction.

2. Standard of review. We review the grant or denial of a preliminary injunction for abuse of discretion. Commonwealth v. Fremont Inv. & Loan, 452 Mass. 733, 741 (2008). The conclusions of law of the judge below are “subject to broad review and will be reversed if incorrect.” Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616 (1980), quoting Buchanan v. United States Postal Serv., 508 F.2d 259, 267 n.24 (5th Cir. 1975). In considering a request for a preliminary injunction the judge evaluates the moving party’s chance of success on the merits and its claim of injury. Packaging Indus. Group, Inc. v. Cheney, supra at 617. Because the defendants do not dispute the likelihood of irreparable harm to Eaton if Fannie Mae proceeds to seek her eviction through the summary process *575action, we confine our discussion to evaluating Eaton’s likelihood of prevailing on the merits of her claim.

3. Discussion. As indicated, the motion judge determined that a foreclosure by sale requires the foreclosing mortgagee, at the time of the sale, to hold both the mortgage and the underlying mortgage note; and that if the mortgagee does not hold the note, the foreclosure sale is void. Based on this view, she concluded that because Green Tree, the assignee of the mortgage, had stipulated that it did not hold the mortgage note executed by Eaton when the sale took place, Eaton was likely to succeed in proving that the foreclosure sale was void and that the defendants had no authority to evict her and take possession of her home. See Bank of N.Y. v. Bailey, 460 Mass. 327, 333 (2011) (challenging evicting party’s entitlement to possession “has long been considered a valid defense to a summary process action for eviction where the property was purchased at a foreclosure sale”). The defendants argue that in reaching this conclusion, the judge misread the Massachusetts common law, and that, in any event, the statutory scheme applicable to exercise of a power of sale gave Green Tree absolute authority, as “mortgagee,” to foreclose. They also claim that Green Tree, as the assignee, had a contractual right to foreclose pursuant to the express terms of the mortgage. We begin with a brief overview of the common law of mortgages and then address the statutes governing exercise of a power of sale in a mortgage. Finally, we review the preliminary injunction in light of the relevant principles discussed and the terms of Eaton’s mortgage.

a. Common law. A real estate mortgage in Massachusetts has two distinct but related aspects: it is a transfer of legal title to the mortgage property, and it serves as security for an underlying note or other obligation — that is, the transfer of title is made in order to secure a debt, and the title itself is defeasible when the debt is paid. See U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 649 (2011) (Ibanez) (Massachusetts is a “title theory” State in which “a mortgage is a transfer of legal title in a property to secure a debt”); Perry v. Miller, 330 Mass. 261, 263 (1953), and cases cited (legal title held by mortgagee is “defeasible upon the payment of money or the performance of some other condition”); Goodwin v. Richardson, 11 Mass. 469, *576475 (1814) (mortgage deed “purports to convey to the mortgagee a present estate in fee simple, defeasible on the performance of a certain condition by the mortgagor”). See also Negron v. Gordon, 373 Mass. 199, 204 (1977) (“[T]he mortgagee holds bare legal title to the property subject to defeasance on the mortgagor’s performance of the obligation secured by the mortgage. It is only for the purpose of securing the debt that the mortgagee is to be considered owner of the property” [citations omitted]); Young v. Miller, 6 Gray 152, 153 (1856) (“The true character of a mortgage is the pledge of real estate to secure the payment of money, or the performance of some other obligation”); Maglione v. BancBoston Mtge. Corp., 29 Mass. App. Ct. 88, 90 (1990) (“So it is that the mortgagor retains an equity of redemption, and upon payment of the note by the mortgagor or upon performance of any other obligation specified in the mortgage instrument, the mortgagee’s interest in the real property comes to an end” [citations omitted]).

Following from these principles, a mortgage separated from the underlying debt that it is intended to secure is “a mere technical interest.” Wolcott v. Winchester, 15 Gray 461, 465 (1860). See Morris v. Bacon, 123 Mass. 58, 59 (1877) (“That the debt is the principal and the mortgage an incident, is a rule too familiar to require citations in support of it”). However, in contrast to some jurisdictions, in Massachusetts the mere transfer of a mortgage note does not carry with it the mortgage. See Barnes v. Boardman, 149 Mass. 106, 114 (1889). See also 1 F. Hilliard, Mortgages 221 (2d ed. 1856) (“The prevailing doctrine upon this subject undoubtedly is, that an assignment of the debt carries the mortgage with it. This rule, however, is by no means universal, and is subject to various qualifications in the different States of the Union”). As a consequence, in Massachusetts a mortgage and the underlying note can be split. See Lamson & Co. v. Abrams, 305 Mass. 238, 245 (1940) (“The holder of the mortgage and the holder of the note may be different persons”).

Under our common law, where a mortgage and note are separated, “the holder of the mortgage holds the mortgage in trust for the purchaser of the note, who has an equitable right to obtain an assignment of the mortgage, which may be accomplished by filing an action in court and obtaining an equitable *577order of assignment.” Ibanez, 458 Mass. at 652, citing Barnes v. Boardman, 149 Mass. at 114. See Wolcott v. Winchester, 15 Gray at 465 (“The party holding such legal estate [i.e., mortgagee holding only mortgage without underlying note] no doubt holds the same in trust for the party owning the debt, where the entire debt secured by a mortgage has been parted with”); Young v. Miller, 6 Gray at 154 (where indorsee of note is without assignment of mortgage securing the note, “the law may well imply the intention of the parties that the mortgage is thenceforth to be held by the mortgagee in trust for the indorsee. In other words, such a transaction might manifest a resulting trust”); Sanger v. Bancroft, 12 Gray 365, 367 (1859) (“A mortgage cannot be made available without connecting it with the debt or duty secured thereby. To one who has not the debt, it is of no value as property, as it could at most be only resorted to as a trust for the benefit of the holder of the note”). See generally 1 F. Hilliard, Mortgages at 216 n.(c) (“The assignment of a mortgage, without the debt, creates at most a naked trust” [emphasis in original]); id. at 217 (“[The mortgage] has no determinate value. If it should be assigned, the assignee must hold the interest at the will and disposal of the creditor who holds the bond”).10

Consistent with the principles just described — that is, the basic nature of a mortgage as security for an underlying mortgage *578note, and the role of a “bare” mortgagee as equitable trustee for the note holder — it appears that, at common law, a mortgagee possessing only the mortgage was without authority to foreclose on his own behalf the mortgagor’s equity of redemption or otherwise disturb the possessory interest of the mortgagor. See Howe v. Wilder, 11 Gray 267, 269-270 (1858) (former assignee of mortgage note and mortgage who had retransferred note and canceled unrecorded mortgage assignment might still hold technical legal title to mortgage property as mortgagee but has no equitable right to disturb mortgagor’s possessory interest and cannot bring action to foreclose mortgagor’s equity of redemption because no money is due from mortgagor to him; only mortgagee with interest in underlying debt can so enforce mortgage). See also Wolcott v. Winchester, 15 Gray at 465 (“As a purchaser [of a mortgage without the underlying note], [defendant] must have known that the possession of the debt was essential to an effective mortgage, and that without it he could not maintain an action to foreclose the mortgage”).11 Cf. Weinberg v. Brother, 263 Mass. 61, 62 (1928).12

*579b. Statutory provisions. The defendants take issue with the applicability of decisions such as Wolcott v. Winchester, 15 Gray at 465, Crowley v. Adams, 226 Mass. 582, 585 (1917), and Howe v. Wilder, 11 Gray at 269-270, to this case. They argue that in any event, G. L. c. 244, § 14, expressly authorized MERS (and its assignee) to foreclose because the mortgage in this case contained a power of sale. Accordingly, we turn to this statute, as well as related statutory provisions that together govern mortgage foreclosures under a power of sale.

It has long been recognized that statutes are a key source of authority generally governing mortgages. See Fay v. Cheney, 14 Pick. 399, 400-401 (1833) (“The law of mortgage in this [Commonwealth, is a mixed system, derived partly from the common law in regard to real property, partly from the rules and maxims of the English [CJourts of [Cjhancery, but principally from various statutes”). Statutes play an especially significant role in connection with mortgage foreclosures effected under a power of sale. See Ibanez, 458 Mass. at 646, quoting Moore v. Dick, 187 Mass. 207, 211 (1905) (“one who sells under a power [of sale] must follow strictly [statutory] terms”).

The “statutory power of sale” is set out in G. L. c. 183, § 21.13 Under this statute, if a mortgage provides for a power of sale, the mortgagee, in exercising the power, may foreclose *580without obtaining prior judicial authorization14 “upon any default in the performance or observance” of the mortgage, id,., including, of course, nonpayment of the underlying mortgage note.15-16 Section 21 provides, however, that for a foreclosure sale pursuant to the power to be valid, the mortgagee must “first comply[] with the terms of the mortgage and with the statutes relating to the foreclosure of mortgages by the exercise of a power of sale.” See *581Moore v. Dick, 187 Mass. 207, 211-213 (1905) (where notice of foreclosure sale was given in newspaper other than one named in mortgage agreement’s power of sale, foreclosure was void, and plaintiffs were entitled to redeem mortgaged property approximately twenty years after sale; laches is no defense to void sale). See also Tamburello v. Monahan, 321 Mass. 445, 446-447 (1947) (where foreclosure sale conducted in bank office nine-tenths of one mile from mortgaged premises, sale was not “on or near the premises” as required by G. L. c. 183, § 21; sale held void).

In addition to G. L. c. 183, § 21, itself, the “statutes relating to the foreclosure of mortgages by the exercise of a power of sale,” id,., are set out in G. L. c. 244, §§ 11-17C. See Ibanez, 458 Mass. at 645-646. Principal among these is c. 244, § 14 (§ 14), which provides in relevant part:

“The mortgagee or person having his estate in the land mortgaged, or a person authorized by the power of sale, . . . may, upon breach of condition and without action, do all the acts authorized or required by the power, but no sale under such power shall be effectual to foreclose a mortgage, unless, previous to such sale, [the notice provisions set forth in this section are followed17 ]” (emphasis added).

The defendants argue that by its plain, unambiguous terms, this section authorized Green Tree, as the assignee of MERS, to foreclose because Eaton’s mortgage identified MERS, its successors and assigns as the “mortgagee” with the “power of sale.” We disagree that § 14 is unambiguous. The section is one in a set of provisions governing mortgage foreclosures by sale, and that set in turn is one component of a chapter of the General Laws devoted generally to the topic of foreclosure and redemption of mortgages. The term “mortgagee” appears in several of these statutes, and its use reflects a legislative understanding or assumption that the “mortgagee” referred to also is *582the holder of the mortgage note. Thus, G. L. c. 244, § 17B, one of the foreclosure by sale sections closely related to § 14, deals with the notice required to be given as a condition to seeking a deficiency owed on a note after a foreclosure sale, and reads in part:

“No action for a deficiency shall be brought ... by the holder of a mortgage note or other obligation secured by mortgage of real estate after a foreclosure sale by him . . . unless a notice in writing of the mortgagee’s intention to foreclose the mortgage has been mailed, postage prepaid, by registered mail with return receipt requested, to the defendant sought to be charged with the deficiency at his last address then known to the mortgagee, together with a warning of liability for the deficiency, in substantially the form [set out in this section] ...” (emphasis added).

By its terms, § 17B assumes that the holder of the mortgage note and the holder of the mortgage are one and the same; the section’s drafters appear to have used the terms “holder of a mortgage note” and “mortgagee” interchangeably.18 Moreover, the statutory form of the notice required by § 17B19 bolsters our interpretation of § 17B; the statutory form language plainly *583envisions that the foreclosing mortgagee (“the mortgage held by me”) and the note holder (“you may be liable to me in case of a deficiency”) are one. And the same underlying assumption — that is, an identity between the mortgagee and the underlying note holder — also underlies several other sections in c. 244. See, e.g., G. L. c. 244, § 19 (providing that person entitled to redeem mortgage property “shall pay or tender to the mortgagee” amount due and payable “on the mortgage”); § 20 (requiring “mortgagee” who has been in possession of mortgage property to account for rents, profits, and expenses, and directing that any account balance be deducted from or added to amount “due on the mortgage”); § 23 (authorizing court to determine what amount not in dispute is “due on the mortgage,” and to order it paid to “mortgagee”).

“Where the Legislature uses the same words in several sections which concern the same subject matter, the words ‘must be presumed to have been used with the same meaning in each section.’ ” Commonwealth v. Wynton W., 459 Mass. 745, 747 (2011), quoting Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 188 189 (1969). See Booma v. Bigelow-Sanford Carpet Co., 330 Mass. 79, 82 (1953) (“It is a familiar canon of construction, that when similar words are used in different parts of a statute, the meaning is presumed to be the same throughout”). Furthermore, we “construe statutes that relate to the same subject matter as a harmonious whole and avoid absurd results.” Connors v. Annino, 460 Mass. 790, 796 (2011), quoting Canton v. Commissioner of the Mass. Highway Dep’t, 455 Mass. 783, 791 792 (2010). See Adoption of Marlene, 443 Mass. 494, 500 (2005), quoting Ciardi v. F. Hoffmann La Roche, Ltd., 436 Mass. 53, 62 (2002) (“Statutes addressing the same subject matter clearly are to be construed harmoniously so as to give full effect to all of their provisions and give rise to a consistent body of law”).

In accordance with these principles, and against the background of the common law as we have described it in the pre*584ceding section, we construe the term “mortgagee” in G. L. c. 244, § 14, to mean a mortgagee who also holds the underlying mortgage note.20-21 The use of the word “mortgagee” in § 14 has some ambiguity, but the interpretation we adopt is the one most consistent with the way the term has been used in related statutory provisions and decisional law, and, more fundamentally, the one that best reflects the essential nature and purpose of a mortgage as security for a debt.22 See Negron v. Gordon, 373 Mass. at 204, and cases cited; Maglione v. BancBoston Mtge. Corp., 29 Mass. App. Ct. at 90, and cases cited. See generally Restatement (Third) of Property (Mortgages) § 1.1 comment (1997) (“The function of a mortgage is to employ an interest in real estate as security for the performance *585of some obligation. . . . Unless it secures an obligation, a mortgage is a nullity”).23-24

*586Contrary to the conclusion of the motion judge, however, we do not conclude that a foreclosing mortgagee must have physical possession of the mortgage note in order to effect a valid foreclosure. There is no applicable statutory language suggesting that the Legislature intended to proscribe application of general agency principles in the context of mortgage foreclosure sales.25 Accordingly, we interpret G. L. c. 244, §§ 11-17C (and particularly § 14), and G. L. c. 183, § 21, to permit one who, although not the note holder himself, acts as the authorized agent of the note holder, to stand “in the shoes” of the “mortgagee” as the term is used in these provisions.26

The defendants and several amici argue, to varying degrees, that an interpretation of “mortgagee” in the statutes governing mortgage foreclosures by sale that requires a mortgagee to hold the mortgage note will wreak havoc with the operation and integrity of the title recording and registration systems by calling into question the validity of any title that has a foreclosure sale in the title chain. This follows, they claim, because although a foreclosing mortgagee must record a foreclosure deed along with an affidavit evidencing compliance with G. L. c. 24, § 14, see G. L. c. 244, § 15; see also G. L. c. 183, § 4, there are no similar provisions for recording mortgage notes; and as a result, clear record title cannot be ascertained because the validity of any prior foreclosure sale is not ascertainable by examining documents of record.27 They argue that if this court requires a *587mortgagee to have a connection to the underlying debt in order to effect a valid foreclosure, such a requirement should be given prospective effect.

In general, when we construe a statute, we do not engage in an analysis whether that interpretation is given retroactive or prospective effect; the interpretation we give the statute usually reflects the court’s view of its meaning since the statute’s enactment. See McIntyre, petitioner, 458 Mass. 257, 261 (2010), cert. denied, 131 S. Ct. 2909 (2011). However, there are several considerations that compel us to give the interpretation of “mortgagee” we announce here only prospective effect. As the previous discussion reflects, the use of the term “mortgagee” in the statutory scheme governing mortgage foreclosures was not free of ambiguity, and while the decisions of this court in years and centuries past provide support for the general proposition that, under our common law, a mortgage ultimately depends on *588connection with the underlying debt for its enforceability, none of our cases has considered directly the question whether a mortgagee must also hold the note or act on behalf of the note holder in order to effect a valid foreclosure by sale. It has been represented to us by the defendants and several amici that lawyers and others who certify or render opinions concerning real property titles have followed in good faith a different interpretation of the relevant statutes, viz., one that requires the mortgagee to hold only the mortgage, and not the note, in order to effect a valid foreclosure by sale. We have no reason to reject this representation of prior practice, and in that context, we recognize there may be significant difficulties in ascertaining the validity of a particular title if the interpretation of “mortgagee” that we adopt here is not limited to prospective operation, because of the fact that our recording system has never required mortgage notes to be recorded.

This court traditionally has given prospective effect to its decisions in very limited circumstances, but those have included circumstances where the ruling announces a change that affects property law. See Papadopoulos v. Target Corp., 457 Mass. 368, 385 (2010); Payton v. Abbott Labs, 386 Mass. 540, 565 (1982). In the property law context, we generally apply our decisions prospectively out of “concern for litigants and others who have relied on existing precedents.” Id. See Powers v. Wilkinson, 399 Mass. 650, 662 (1987). In addition, there may be particular reason to give a decision prospective effect where — as the argument is made here — “prior law is of questionable prognosticative value.” Blood v. Edgar’s, Inc., 36 Mass. App. Ct. 402, 407 (1994). Where a decision is not grounded in constitutional principles, but instead announces “a new common-law rule, a new interpretation of a State statute, or a new rule in the exercise of our superintendence power, there is no constitutional requirement that the new rule or new interpretation be applied retroactively, and we are therefore free to determine whether it should be applied only prospectively.” Commonwealth v. Dagley, 442 Mass. 713, 721 n.10 (2004), cert. denied, 544 U.S. 930 (2005). In the exceptional circumstances presented here, and for the reasons that we have discussed, we exercise our discretion to hold that the interpretation of the term “mortgagee” *589in G. L. c. 244, § 14, and related statutory provisions that we adopt in this opinion is to apply only to mortgage foreclosure sales for which the mandatory notice of sale has been given after the date of this opinion.28

c. Preliminary injunction. Although we apply the rule articulated in this case prospectively, we nonetheless apply it to Green Tree’s appeal because it has been argued to this court by Eaton. See Bouchard v. DeGagne, 368 Mass. 45, 48-49 (1975) (party seeking relief may be entitled to benefit from rule announced in case, even when other “somewhat similarly situated [parties] are not afforded the benefit of retroactive application of the principles established by that first appellate determination”). Cf. Tucker v. Badoian, 376 Mass. 907, 918-919 (1978) (Kaplan, J., concurring) (suggesting that when newly announced rule is given prospective effect, that rule may still apply to the case at bar if parties raised issue; declining to apply new rule, however, where parties appeared to accept that old rule would apply to them). See generally Powers v. Wilkinson, 399 Mass. at 663-665 (Abrams, J., concurring in part and dissenting in part) (discussing reasons in favor of applying new rule given general prospective application to particular litigants involved).

The motion judge granted the preliminary injunction based on her determination that as a matter of still applicable common law, for a foreclosure by sale to be valid, the mortgage and the mortgage note must be unified physically in the possession of the foreclosing mortgagee. We have focused principally on the statutes governing mortgage foreclosure by sale and have concluded that where a mortgagee acts with the authority and on behalf of the note holder, the mortgagee may comply with these statutory requirements without physically possessing or actually holding the mortgage note. Eaton’s verified complaint alleges that at the time of foreclosure in this case, Green Tree, *590as assignee of MERS, was neither in possession of Eaton’s mortgage note nor “authorized by the holder of the note to carry out the foreclosure.” However, Eaton makes this allegation solely on “information and belief.” As a general rule, an allegation that is supported on “information and belief” does not supply an adequate factual basis for the granting of a preliminary injunction. See Alexander & Alexander, Inc. v. Danahy, 21 Mass. App. Ct. 488, 493-494 (1986), and cases cited (noting that although preliminary injunction may be based on affidavits and verified complaint, allegations based only on information and belief would be insufficient to support preliminary injunction). See also M.G. Perlin & S.H. Blum, Procedural Forms Annotated § 106:1 (6th ed. 2009).

The motion judge’s decision on the preliminary injunction does not consider the question of Green Tree’s (or MERS’s) authority to act on behalf of BankUnited or an assignee of Bank-United in initiating foreclosure proceedings, and our examination of the Superior Court record suggests that this issue was not raised below. In the circumstances, we conclude that Eaton’s allegation on information and belief that Green Tree was not authorized by the note holder to carry out the foreclosure sale did not offer an adequate factual basis to support the preliminary injunction that was issued. Consequently, the order granting the preliminary injunction must be vacated. On remand, Eaton may renew her request for a preliminary injunction, and in that context seek to show that she has a reasonable likelihood of establishing that, at the time of the foreclosure sale, Green Tree neither held the note nor acted on behalf of the note holder.29

4. Conclusion. We vacate the grant of the preliminary injunction, and remand the case to the Superior Court for further proceedings consistent with this opinion.

So ordered.

HAMILTON, Circuit Judge.

We are asked in this appeal to determine whether Lori Wigod has stated claims under Illinois law against her home mortgage servicer for refusing to modify her loan pursuant to the federal Home Affordable Mortgage Program (HAMP). The U.S. Department of the Treasury implemented HAMP to help homeowners avoid foreclosure amidst the sharp decline in the nation’s housing market in 2008. In 2009, Wells Fargo issued Wigod a four-month “trial” loan modification, under which it agreed to permanently modify the loan if she qualified under HAMP guidelines. Wigod alleges that she did qualify *555and that Wells Fargo refused to grant her a permanent modification. She brought this putative class action alleging violations of Illinois law under common-law contract and tort theories and under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA). The district court dismissed the complaint in its entirety under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Wigod v. Wells Fargo Bank, N.A., No. 10 CV 2348, 2011 WL 250501 (N.D.Ill. Jan. 25, 2011). The court reasoned that Wigod’s claims were premised on Wells Fargo’s obligations under HAMP, which does not confer a private federal right of action on borrowers to enforce its requirements.

This appeal followed, and it presents two sets of issues. The first set of issues concerns whether Wigod has stated viable claims under Illinois common law and the ICFA. We conclude that she has on four counts. Wigod alleges that Wells Fargo agreed to permanently modify her home loan, deliberately misled her into believing it would do so, and then refused to make good on its promise. These allegations support garden-variety claims for breach of contract or promissory estoppel. She has also plausibly alleged that Wells Fargo committed fraud under Illinois common law and engaged in unfair or deceptive business practices in violation of the ICFA. Wigod’s claims for negligent hiring or supervision and for negligent misrepresentation or concealment are not viable, however. They are barred by Illinois’s economic loss doctrine because she alleges only economic harms arising from a contractual relationship. Wigod’s claim for fraudulent concealment is also not actionable because she cannot show that Wells Fargo owed her a fiduciary or other duty of disclosure.

The second set of issues concerns whether these state-law claims are preempted or otherwise barred by federal law. We hold that they are not. HAMP and its enabling statute do not contain a federal right of action, but neither do they preempt otherwise viable state-law claims. We accordingly reverse the judgment of the district court on the contract, promissory estoppel, fraudulent misrepresentation, and ICFA claims, and affirm its judgment on the negligence claims and fraudulent concealment claim.

I. Factual and Procedural Background

We review de novo the district court’s decision to dismiss Wigod’s complaint for failure to state a claim. E.g., Abcarian v. McDonald, 617 F.3d 931, 933 (7th Cir.2010). We must accept as true all factual allegations in the complaint. E.g., Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Under the federal rules’ notice pleading standard, a complaint must contain only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint will survive a motion to dismiss if it “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A party who appeals from a Rule 12(b)(6) dismissal may elaborate on her allegations so long as the elaborations are consistent with the pleading. See Chavez v. Illinois State Police, 251 F.3d 612, 650 (7th Cir.2001); Highsmith v. Chrysler Credit Corp., 18 F.3d 434, 439-40 (7th Cir.1994) (reversing dismissal in relevant part based on such new elaborations); Dawson v. General Motors *556Corp., 977 F.2d 369, 372 (7th Cir.1992) (reversing dismissal based on new elaborations).

In deciding a Rule 12(b)(6) motion, the court may also consider documents attached to the pleading without converting the motion into one for summary judgment. See Fed.R.Civ.P. 10(c). Wigod attached to her complaint her trial loan modification agreement with Wells Fargo, along with a variety of other documents produced in the course of the parties’ commercial relationship. The court may also consider public documents and reports of administrative bodies that are proper subjects for judicial notice, though caution is necessary, of course. See Papasan v. Allain, 478 U.S. 265, 268 n. 1, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); 520 South Michigan Ave. Associates, Ltd. v. Shannon, 549 F.3d 1119, 1137 n. 14 (7th Cir.2008); Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599, 600 (7th Cir.2004); Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 456 (7th Cir.1998). We have done so here to provide background information on the HAMP program.

A. The Home Affordable Mortgage Program

In response to rapidly deteriorating financial market conditions in the late summer and early fall of 2008, Congress enacted the Emergency Economic Stabilization Act, P.L. 110-343, 122 Stat. 3765. The centerpiece of the Act was the Troubled Asset Relief Program (TARP), which required the Secretary of the Treasury, among many other duties and powers, to “implement a plan that seeks to maximize assistance for homeowners and ... encourage the servicers of the underlying mortgages ... to take advantage of ... available programs to minimize foreclosures.” 12 U.S.C. § 5219(a). Congress also granted the Secretary the authority to “use loan guarantees and credit enhancements to facilitate loan modifications to prevent avoidable foreclosures.” Id.

Pursuant to this authority, in February 2009 the Secretary set aside up to $50 billion of TARP funds to induce lenders to refinance mortgages with more favorable interest rates and thereby allow homeowners to avoid foreclosure. The Secretary negotiated Servicer Participation Agreements (SPAs) with dozens of home loan servicers, including Wells Fargo. Under the terms of the SPAs, servicers agreed to identify homeowners who were in default or would likely soon be in default on their mortgage payments, and to modify the loans of those eligible under the program. In exchange, servicers would receive a $1,000 payment for each permanent modification, along with other incentives. The SPAs stated that servicers “shall perform the loan modification ... described in ... the Program guidelines and procedures issued by the Treasury ... and ... any supplemental documentation, instructions, bulletins, letters, directives, or other communications ... issued by the Treasury.” In such supplemental guidelines, Treasury directed servicers to determine each borrower’s eligibility for a modification by following what amounted to a three-step process:

First, the borrower had to meet certain threshold requirements, including that the loan originated on or before January 1, 2009; it was secured by the borrower’s primary residence; the mortgage payments were more than 31 percent of the borrower’s monthly income; and, for a one-unit home, the current unpaid principal balance was no greater than $729,750.

Second, the servicer calculated a modification using a “waterfall” method, applying enumerated changes in a specified order until the borrower’s monthly mortgage *557payment ratio dropped “as close as possible to 31 percent.”1

Third, the servicer applied a Net Present Value (NPV) test to assess whether the modified mortgage’s value to the servicer would be greater than the return on the mortgage if unmodified. The NPV test is “essentially an accounting calculation to determine whether it is more profitable to modify the loan or allow the loan to go into foreclosure.” Williams v. Geithner, No. 09-1959 ADM/JJG, 2009 WL 3757380, at *3 n. 3 (D.Minn. Nov. 9, 2009). If the NPV result was negative — that is, the value of the modified mortgage would be lower than the servicer’s expected return after foreclosure — the servicer was not obliged to offer a modification. If the NPV was positive, however, the Treasury directives said that “the servicer MUST offer the modification.” Supplemental Directive 09-01.

B. The Trial Period Plan

Where a borrower qualified for a HAMP loan modification, the modification process itself consisted of two stages. After determining a borrower was eligible, the servicer implemented a Trial Period Plan (TPP) under the new loan repayment terms it formulated using the waterfall method. The trial period under the TPP lasted three or more months, during which time the lender “must service the mortgage loan ... in the same manner as it would service a loan in forbearance.” Supplemental Directive 09-01. After the trial period, if the borrower complied with all terms of the TPP Agreement — including making all required payments and providing all required documentation — and if the borrower’s representations remained true and correct, the servicer had to offer a permanent modification. See Supplemental Directive 09-01 (“If the borrower complies with the terms and conditions of the Trial Period Plan, the loan modification will become effective on the first day of the month following the trial period.... ”).

Treasury modified its directives on the timing of the verification process in a way that affects this case. Under the original guidelines that were in effect when Wigod applied for a modification, a servicer could initiate a TPP based on a borrower’s undocumented representations about her finances. See Supplemental Directive 09-01 (“Servicers may use recent verbal [sic] financial information to prepare and offer a Trial Period Plan. Servicers are not required to verify financial information prior to the effective date of the trial period.”). Those guidelines were part of a decision to roll out HAMP very quickly.2

C. Plaintiff’s Loan

In September 2007, Wigod obtained a home mortgage loan for $728,500 from *558Wachovia Mortgage, which later merged into Wells Fargo. (For simplicity, we refer only to Wells Fargo here.) Finding herself in financial distress, Wigod submitted a written request to Wells Fargo for a HAMP modification in April 2009. At that time, Treasury’s original guidelines were still in force, so Wells Fargo could choose whether (A) to offer Wigod a trial modification based on unverified oral representations, or (B) to require her to provide documentary proof of her financial information before commencing the trial plan.

Wigod alleges that Wells Fargo took option (B). Only after Wigod provided all required financial documentation did Wells Fargo, in mid-May 2009, determine that Wigod was eligible for HAMP and send her a TPP Agreement. The TPP stated: “I understand that after I sign and return two copies of this Plan to the Lender, the Lender will send me a signed copy of this Plan if I qualify for the [permanent modification] Offer or will send me written notice that I do not qualify for the Offer.” TPP ¶ 2.

On May 28, 2009, Wigod signed two copies of the TPP Agreement and returned them to the bank, along with additional documents and the first of four modified trial period payments. Wells Fargo then executed the TPP Agreement and sent a copy to Wigod in early June 2009. The trial term ran from July 1, 2009 to November 1, 2009. The TPP Agreement provided: “If I am in compliance with this Loan Trial Period and my representations in Section 1 continue to be true in all material respects, then the Lender will provide me with a [permanent] Loan Modification Agreement.” TPP ¶ 1.

Wigod timely made, and Wells Fargo accepted, all four payments due under the trial plan. On the pleadings, we must assume that she complied with all other obligations under the TPP Agreement. Nevertheless, Wells Fargo declined to offer Wigod a permanent HAMP modification, informing her only that it was “unable to get you to a modified payment amount that you could afford per the investor guidelines on your mortgage.” After the expiration of the TPP, Wells Fargo warned Wigod that she owed the outstanding balance and late fees and, in a subsequent letter, that she was in default on her home mortgage loan. Over the next few months, Wigod protested Wells Fargo’s decision in a number of telephone conversations, but to no avail. During that time, she continued to make mortgage payments in the reduced amount due under the TPP, even after the trial term ended on November 1, 2009. In the meantime, Wells Fargo sent Wigod monthly notices threatening to foreclose if she failed to pay the accumulating amount of delinquency based on the original loan terms.

According to Wigod, Wells Fargo improperly re-evaluated her for HAMP after it had already determined that she was qualified and offered her a trial modification, and that it erroneously determined that she was ineligible for a permanent modification by miscalculating her property taxes. Wells Fargo responds that Treasury guidelines then in force allowed the servicer to verify, after initiating a trial modification, that the borrower satisfied all government and investor criteria for a permanent modification, and that Wigod did not. In the course of this proceeding, however, Wells Fargo has not identified the specific criteria that Wigod failed to satisfy, except to say that it could not craft a permanent modification plan for her that would be consistent with its investor guidelines. Because we are reviewing a Rule 12(b)(6) dismissal, we disregard Wells Far*559go’s effort to contradict the complaint.3

D. Procedural History

On April 15, 2010, Wigod filed a class action complaint in the Northern District of Illinois on behalf of all homeowners in the United States who had entered into TPP Agreements with Wells Fargo, complied with all terms, and were nevertheless denied permanent modifications. Wigod’s complaint contains seven counts: (I) breach of contract (and breach of implied covenants) for violating the TPP; (II) promissory estoppel, also based on representations made in the TPP; (III) breach of the Servicer Participation Agreement; (IV) negligent hiring and supervision; (V) fraudulent misrepresentation or concealment; (VI) negligent misrepresentation or concealment; and (VII) violation of the ICFA.

The district court dismissed Counts I, II, IV, and VI because each theory of liability was “premised on Wells Fargo’s obligations” under HAMP, which does not provide borrowers a private federal right of action against servicers to enforce it. In the district court’s view, Wigod’s common-law claims for breach of contract, promissory estoppel, negligent hiring and supervision, and fraud were “not sufficiently independent to state ... separate state law cause[s] of action.” The district court dismissed Count III because a borrower lacks standing to sue as an intended third-party beneficiary of the Servicer Participation Agreement. Count VI was dismissed because the district court concluded that Wigod could not reasonably have relied on Wells Fargo’s representation in the TPP that she would receive a permanent modification so long as she made all four trial payments and her financial information remained true and accurate, since elsewhere the TPP required Wigod to meet all of HAMP’s requirements for permanent modification. Finally, the district court dismissed Count VII because Wigod had not plausibly alleged that Wells Fargo acted with intent to deceive her, which the court concluded was a required element under the ICFA. Wigod appeals the district court’s decision as to all claims but Count III.

We first examine whether Wigod has adequately pled viable claims under Illinois law, and we conclude that she has done so for breach of contract, promissory estoppel, fraudulent misrepresentation, and violation of the ICFA. We then consider whether federal law precludes Wigod from pursuing her state-law claims, and we hold that it does not.4

*560II. State-Law Claims

A. Breach of Contract

At the heart of Wigod’s complaint is her claim for breach of contract. The required elements of a breach of contract claim in Illinois are the standard ones of common law: “(1) offer and acceptance, (2) consideration, (3) definite and certain terms, (4) performance by the plaintiff of all required conditions, (5) breach, and (6) damages.” Association Benefit Services, Inc. v. Caremark RX, Inc., 493 F.3d 841, 849 (7th Cir.2007), quoting MG Baldwin Fin. Co. v. DiMaggio, Rosario & Veraja, LLC, 364 Ill.App.3d 6, 300 Ill.Dec. 601, 845 N.E.2d 22, 30 (2006).

In two different provisions of the TPP Agreement, paragraph 1 and section 3, Wells Fargo promised to offer Wigod a permanent loan modification if two conditions were satisfied: (1) she complied with the terms of the TPP by making timely payments and disclosures; and (2) her representations remained true and accurate.5 *561Wigod alleges that she met both conditions and accepted the offer, but that Wells Fargo refused to provide a permanent modification. These allegations state a claim for breach of contract. Wells Fargo offers three theories, however, to argue that the TPP was not an enforceable contract: (1) the TPP contained no valid offer; (2) consideration was absent; and (3) the TPP lacked clear and definite terms. We reject each theory.

1. Valid Offer

In Illinois, the “test for an offer is whether it induces a reasonable belief in the recipient that he can, by accepting, bind the sender.” Boomer v. AT & T Corp., 309 F.3d 404, 415 (7th Cir.2002), quoting McCarty v. Verson Allsteel Press Co., 89 Ill.App.3d 498, 44 Ill.Dec. 570, 411 N.E.2d 936, 943 (1980); see also Restatement (Second) of Contracts § 24 (1981) (“An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.”). To determine whether the TPP made a definite (though conditional) offer of permanent modification, we examine the language of the agreement itself and the surrounding circumstances. See Restatement (Second) of Contracts § 26, cmts. a & c (1981), citing R.E. Crummer & Co. v. Nuveen, 147 F.2d 3, 5 (7th Cir.1945).

Wells Fargo contends that the TPP was not an enforceable offer to permanently modify Wigod’s mortgage because it was conditioned on Wells Fargo’s further review of her financial information to ensure she qualified under HAMP. Under contract law principles, when “some further act of the purported offeror is necessary, the purported offeree has no power to create contractual relations, and there is as yet no operative offer.” 1 Joseph M. Perillo, Corbin on Contracts § 1.11, at 31 (rev. ed. 1993) (hereinafter “Corbin on Contracts (rev. ed.)”), citing Bank of Benton v. Cogdill, 118 Ill.App.3d 280, 73 Ill.Dec. 871, 454 N.E.2d 1120, 1125-26 (1983). Thus, “a person can prevent his submission from being treated as an offer by [using] suitable language conditioning the formation of a contract on some further step, such as approval by corporate headquarters.” Architectural Metal Systems, Inc. v. Consolidated Systems, Inc., 58 F.3d 1227, 1230 (7th Cir.1995) (Illinois law). Wells Fargo contends that the TPP did just that by making a permanent modification expressly contingent on the bank taking some later action.

That is not a reasonable reading of the TPP. Certainly, when the promisor conditions a promise on his own future action or approval, there is no binding offer. But when the promise is conditioned on the performance of some act by the promisee or a third party, there can be a valid offer. See 1 Richard A. Lord, Williston on Contracts § 4:27 (4th ed. 2011) (hereinafter “Williston on Contracts ”) (“[A] condition of subsequent approval by the promisor in the promisor’s sole discretion gives rise to no obligation.... However, the mere fact that an offer or agreement is subject to events not within the promisor’s control *562... will not render the agreement illusory.”); compare McCarty, 44 Ill.Dec. 570, 411 N.E.2d at 942 (“An offer is an act on the part of one person giving another person the legal power of creating the obligation called a contract.”), with Village of South Elgin v. Waste Management of Illinois, Inc., 348 Ill.App.3d 929, 284 Ill.Dec. 868, 810 N.E.2d 658, 672 (2004) (“A manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.”), quoting Restatement (Second) of Contracts § 26 (1981).

Here the TPP spelled out two conditions precedent to Wells Fargo’s obligation to offer a permanent modification: Wigod had to comply with the requirements of the trial plan, and her financial information had to remain true and accurate. But these were conditions to be satisfied by the promisee (Wigod) rather than conditions requiring further manifestation of assent by the promisor (Wells Fargo). These conditions were therefore consistent with treating the TPP as an offer for permanent modification.

Wells Fargo insists that its obligation to modify Wigod’s mortgage was also contingent on its determination, after the trial period began, that she qualified under HAMP guidelines. That theory conflicts with the plain terms of the TPP. At the beginning, when Wigod received the unsigned TPP, she had to furnish Wells Fargo with “documents to permit verification of ... [her] income ... to determine whether [she] qualified] for the offer.” TPP ¶ 2. The TPP then provided: “I understand that after I sign and return two copies of this Plan to the Lender, the Lender will send me a signed copy of this Plan if I qualify for the Offer or will send me written notice that I do not qualify for the offer.” TPP ¶ 2 (emphasis added). Wigod signed two copies of the Plan on May 29, 2009, and returned them along with additional financial documentation to Wells Fargo.

Under the terms of the TPP Agreement, then, that moment was Wells Fargo’s opportunity to determine whether Wigod qualified. If she did not, it could have and should have denied her a modification on that basis. Instead, Wells Fargo countersigned on June 4, 2009 and mailed a copy to Wigod with a letter congratulating her on her approval for a trial modification. In so doing, Wells Fargo communicated to Wigod that she qualified for HAMP and would receive a permanent “Loan Modification Agreement” after the trial period, provided she was “in compliance with this Loan Trial Period and [her] representations ... continue[d] to be true in all material respects.” TPP ¶ 1.

In more abstract terms, then, when Wells Fargo executed the TPP, its terms included a unilateral offer to modify Wigod’s loan conditioned on her compliance with the stated terms of the bargain. “The test for an offer is whether it induces a reasonable belief in the [offeree] that he can, by accepting, bind the [offeror].” Architectural Metal Systems, 58 F.3d at 1229, citing McCarty, 44 Ill.Dec. 570, 411 N.E.2d at 943; see also 1 Williston on Contracts § 4.10 (offer existed if the purported offeree “reasonably [could] have supposed that by acting in accordance with it a contract could be concluded”). Here a reasonable person in Wigod’s position would read the TPP as a definite offer to provide a permanent modification that she could accept so long as she satisfied the conditions.

This is so notwithstanding the qualifying language in section 2 of the TPP. An acknowledgment in that section provided: *563“I understand that the Plan is not a modification of the Loan Documents and that the Loan Documents will not be modified unless and until (i) I meet all of the conditions required for modification, (ii) I receive a fully executed copy of the Modification Agreement, and (in) the Modification Effective Date has passed.” TPP § 2.G.6 According to Wells Fargo, this provision meant that all of its obligations to Wigod terminated if Wells Fargo itself chose not to deliver “a fully executed TPP and ‘Modification Agreement’ by November 1, 2009.” In other words, Wells Fargo argues that its obligation to send Wigod a permanent Modification Agreement was triggered only if and when it actually sent Wigod a Modification Agreement.

Wells Fargo’s proposed reading of section 2 would nullify other express provisions of the TPP Agreement. Specifically, it would nullify Wells Fargo’s obligation to “send [Wigod] a Modification Agreement” if she “complied] with the requirements” of the TPP and if her “representations ... continue to be true in all material respects.” TPP § 3. Under Wells Fargo’s theory, it could simply refuse to send the Modification Agreement for any reason whatsoever — interest rates went up, the economy soured, it just didn’t like Wigod— and there would still be no breach. Under this reading, a borrower who did all the TPP required of her would be entitled to a permanent modification only when the bank exercised its unbridled discretion to put a Modification Agreement in the mail. In short, Wells Fargo’s interpretation of the qualifying language in section 2 turns an otherwise straightforward offer into an illusion.

The more natural interpretation is to read the provision as saying that no permanent modification existed “unless and until” Wigod (i) met all conditions, (ii) Wells Fargo executed the Modification Agreement, and (iii) the effective modification date passed. Before these conditions were met, the loan documents remained unmodified and in force, but under paragraph 1 and section 3 of the TPP, Wells Fargo still had an obligation to offer Wigod a permanent modification once she satisfied all her obligations under the agreement. This interpretation follows from the plain and ordinary meaning of the contract language stating that “the Plan is not a modification ... unless and until” the conditions precedent were fulfilled. TPP § 2.G. And, unlike Wells Fargo’s reading, it gives full effect to all of the TPP’s provisions. See McHenry Savings Bank v. Autoworks of Wauconda, Inc., 399 Ill. App.3d 104, 338 Ill.Dec. 671, 924 N.E.2d 1197, 1205 (2010) (“If possible we must interpret a contract in a manner that gives effect to all of the contract’s provisions.”), citing Bank of America Nat’l Trust & Savings Ass’n v. Schulson, 305 Ill.App.3d 941, 239 Ill.Dec. 462, 714 N.E.2d 20, 24 (1999). Once Wells Fargo signed the TPP Agreement and returned it to Wigod, an objectively reasonable person would construe it as an offer to provide a permanent modification agreement if she fulfilled its conditions.

2. Consideration

Under Illinois law, “consideration consists of some detriment to the offeror, *564some benefit to the offeree, or some bargained-for exchange between them.” Dumas v. Infinity Broadcasting Corp., 416 F.3d 671, 679 n. 9 (7th Cir.2005), quoting Doyle v. Holy Cross Hospital, 186 Ill.2d 104, 237 Ill.Dec. 100, 708 N.E.2d 1140, 1145 (1999). “If a debtor does something more or different in character from that which it was legally bound to do, it will constitute consideration for the promise.” 3 Williston on Contracts, § 7:27.

Here the TPP contained sufficient consideration because, under its terms, Wigod (the promisee) incurred cognizable legal detriments. By signing it, Wigod agreed to open new escrow accounts, to undergo credit counseling (if asked), and to provide and vouch for the truth of her financial information. Wigod’s complaint alleges that she did more than simply agree to pay a discounted amount in satisfaction of a prior debt. In exchange for Wells Fargo’s conditional promise to modify her home mortgage, she undertook multiple obligations above and beyond her existing legal duty to make mortgage payments. This was adequate consideration, as a number of district courts adjudicating third-generation HAMP cases have recognized. See, e.g., In re Bank of America Home Affordable Modification Program (HAMP) Contract Litigation, No. 10-md-02193-RWZ, 2011 WL 2637222, at *4 (D.Mass. July 6, 2011) (multi-district litigation) (“The requirements of the TPP all constitute new legal detriments.”); Ansanelli v. JP Morgan Chase Bank, N.A., No. C 10-03892 WHA, 2011 WL 1134451, at *4 (N.D.Cal. Mar. 28, 2011) (same).

3. Definite and Certain Terms

A contract is enforceable under Illinois law if from its plain terms it is ascertainable what each party has agreed to do. Academy Chicago Publishers v. Cheever, 144 Ill.2d 24, 161 Ill.Dec. 335, 578 N.E.2d 981, 983 (1991). “A contract may be enforced even though some contract terms may be missing or left to be agreed upon, but if the essential terms are so uncertain that there is no basis for deciding whether the agreement has been kept or broken, there is no contract.” Id., 161 Ill.Dec. 335, 578 N.E.2d at 984. Wells Fargo contends that the TPP is unenforceable because it did not specify the exact terms of the permanent loan modification, including the interest rate, the principal balance, loan duration, and the total monthly payment.7 Because the TPP allowed the lender to determine the precise contours of the permanent modification at a later date, Wells Fargo argues, it reflected no “meeting of the minds” as to the permanent modification’s essential terms, so that it was an unenforceable “agreement to agree.”

It is true that Wigod’s trial period terms were an “estimate” of the terms of the permanent modification and that Wells Fargo had some limited discretion to modify permanent terms based on its determination of the “final amounts of unpaid interest and other delinquent amounts.” TPP §§ 2, 3. But this hardly makes the TPP a mere “agreement to agree.” This court, applying Illinois law, has explained that a contract with open terms can be enforced:

*565In order for such a contract to be enforceable, however, it is necessary that the terms to be agreed upon in the future can be determined “independent of a party’s mere “wish, will, and desire’ ..., either by virtue of the agreement itself or by commercial practice or other usage or custom.”

United States v. Orr Construction Co., 560 F.2d 765, 769 (7th Cir.1977), quoting 1 Arthur Linton Corbin, Corbin on Contracts § 95, at 402 (1960 ed.) (hereinafter “Corbin on Contracts (1960 ed.)”) (internal quotation marks omitted). Professor Cor-bin’s treatise continues: “This may be the case, even though the determination is left to one of the contracting parties, if he is required to make it ‘in good faith’ in accordance with some existing standard or with facts capable of objective proof.” 1 Corbin on Contracts § 95, at 402 (1960 ed.).

In this case, HAMP guidelines provided precisely this “existing standard” by which the ultimate terms of Wigod’s permanent modification were to be set. "When one party to a contract has discretion to set open terms in a contract, that party must do so “reasonably and not arbitrarily or in a manner inconsistent with the reasonable expectations of the parties.” Cromeens, Holloman, Sibert, Inc. v. AB Volvo, 349 F.3d 376, 395 (7th Cir.2003) (applying Illinois law). In its program directives, the Department of the Treasury set forth the exact mechanisms for determining borrower eligibility and for calculating modification terms — namely, the waterfall method and the NPV test. These HAMP guidelines unquestionably informed the reasonable expectations of the parties to Wigod’s TPP Agreement, which is actually entitled “Home Affordable Modification Program Loan Trial Period.” In Wigod’s reasonable reading of the agreement, if she “qualified] for the Offer” (meaning, of course, that she qualified under HAMP) and complied with the terms of the TPP, Wells Fargo would offer her a permanent modification. TPP ¶2. To calculate Wigod’s trial modification terms, Wells Fargo was obligated to use the NPV test and the waterfall method to try to bring her monthly payments down to 31 percent of her gross income. ' Although the trial terms were just an “estimate” of the permanent modification terms, the TPP fairly implied that any deviation from them in the permanent offer would also be based on Wells Fargo’s application of the established HAMP criteria and formulas.

Wells Fargo, of course, has not offered Wigod any permanent modification, let alone one that is consistent with HAMP program guidelines. Thus, even without reference to the HAMP modification rules, Wigod’s complaint alleges that Wells Fargo breached its promise to provide her with a permanent modification once she fulfilled the TPP’s conditions. Although Wells Fargo may have had some limited discretion to set the precise terms of an offered permanent modification, it was certainly required to offer some sort of good-faith permanent modification to Wigod consistent with HAMP guidelines. It has offered none. See Corbin on Contracts § 4.1, at 532 (rev. ed.) (“Where the parties intend to contract but defer agreement on certain essential terms until later, the gap can be cured if one of the parties offers to accept any reasonable proposal that the other may make. The other’s failure to make any proposal is a clear indication that the missing term is not the cause of the contract failure.”). We must assume at the pleadings stage that Wigod met each of the TPP’s conditions, and it is undisputed that Wells Fargo offered no permanent modification at all. The terms of the TPP are clear and definite enough to support Wigod’s breach of contract theory. Accord, e.g., Belyea v. Litton Loan Servicing, LLP, No. 10-10931-DJC, 2011 *566WL 2884964, at *8 (D.Mass. July 15, 2011) (“At a minimum, then, the TPP contains all essential and material terms necessary to govern the trial period repayments and the parties’ related obligations.”), quoting Bosque v. Wells Fargo Bank, N.A., 762 F.Supp.2d 342, 352 (D.Mass.2011). Wigod’s complaint sufficiently pled each element of a breach of contract claim under Illinois law. The relevant documents do not undermine her claim as a matter of law.

B. Promissory Estoppel

Wigod also asserts a claim for promissory estoppel, which is an alternative means of obtaining contractual relief under Illinois law. See Prentice v. UDC Advisory Services, Inc., 271 Ill.App.3d 505, 207 Ill.Dec. 690, 648 N.E.2d 146, 150 (1995), citing Quake Construction, Inc. v. American Airlines, Inc., 141 Ill.2d 281, 152 Ill.Dec. 308, 565 N.E.2d 990 (1990). Promissory estoppel makes a promise binding where “all the other elements of a contract exist, but consideration is lacking.” Dumas v. Infinity Broadcasting Corp., 416 F.3d 671, 677 (7th Cir.2005), citing Bank of Marion v. Robert “Chick” Fritz, Inc., 57 Ill.2d 120, 311 N.E.2d 138 (1974). The doctrine is “commonly explained as promoting the same purposes as the tort of misrepresentation: punishing or deterring those who mislead others to their detriment and compensating those who are misled.” Avery Katz, When Should an Offer Stick ? The Economics of Promissory Estoppel in Preliminary Negotiations, 105 Yale L.J. 1249, 1254 (1996). To establish the elements of promissory estoppel, “the plaintiff must prove that (1) defendant made an unambiguous promise to plaintiff, (2) plaintiff relied on such promise, (3) plaintiffs reliance was expected and foreseeable by defendants, and (4) plaintiff relied on the promise to its detriment.” Newton Tractor Sales, Inc. v. Kubota Tractor Corp., 233 Ill.2d 46, 329 Ill. Dec. 322, 906 N.E.2d 520, 523-24 (2009).

Wigod has adequately alleged her claim of promissory estoppel. She asserts that Wells Fargo made an unambiguous promise that if she made timely payments and accurate representations during the trial period, she would receive an offer for a permanent loan modification calculated using the required HAMP methodology. She also alleges that she relied on that promise to her detriment by foregoing the opportunity to use other remedies to save her home (such as restructuring her debt in bankruptcy), and by devoting her resources to making the lower monthly payments under the TPP Agreement rather than attempting to sell her home or simply defaulting. A lost opportunity can constitute a sufficient detriment to support a promissory estoppel claim. See Wood v. Mid-Valley Inc., 942 F.2d 425, 428 (7th Cir.1991) (noting that a “foregone ... opportunity” would be “reliance enough to support a claim of promissory estoppel”) (applying Indiana law). Wigod’s complaint therefore alleged a sufficiently clear promise, evidence of her own reliance, and an explanation of the injury that resulted. She also contends that Wells Fargo ought to have anticipated her compliance with the terms of its promise. This was enough to present a facially plausible claim of promissory estoppel.8

*567C. Negligent Hiring and Supervision

Wigod’s next claim is that Wells Fargo deliberately hired unqualified customer service employees and refused to train them to implement HAMP effectively “so that borrowers would become too frustrated to pursue their modifications.” Compl. ¶ 96. Wigod also alleges that Wells Fargo adopted policies designed to sabotage the HAMP modification process, such as a rule limiting borrowers to only one telephone call with any given employee, effectively requiring borrowers to start from scratch with an unfamiliar agent in any follow-up call.9

The economic loss doctrine forecloses Wigod’s recovery on this negligence claim. Known as the Moorman doctrine in Illinois, this doctrine bars recovery in tort for purely economic losses arising out of a failure to perform contractual obligations. See Moorman Manufacturing Co. v. Nat’l Tank Co., 91 Ill.2d 69, 61 Ill.Dec. 746, 435 N.E.2d 443, 448-49 (1982). The Moorman doctrine precludes liability for negligent hiring and supervision in cases where, in the course of performing a contract between the defendant and the plaintiff, the defendant’s employees negligently cause the plaintiff to suffer some purely economic form of harm. See, e.g., Freedom Mortg. Corp. v. Burnham Mortg., Inc., 720 F.Supp.2d 978, 1002 (N.D.Ill.2010) (plaintiffs “negligent retention and supervision claims violate Moorman because they relate to [its] contractual and commercial relationship” with defendant); Soranno v. New York Life Ins. Co., No. 96 C 7882, 1999 WL 104403, at *16 (N.D.Ill. Feb. 24, 1999) (Plaintiffs’ negligent supervision claims “cannot survive Moorman to the extent that they relate to ... [the] actions [of the defendant’s agent] in selling the insurance contracts and annuities [to plaintiffs]. Those acts — and the related duty to'supervise them — appear to have arisen under the contract.”); Johnson Products Co. v. Guardsmark, Inc., No. 97 C 6406, 1998 WL 102687, at *8 (N.D.Ill. Feb. 27, 1998) (economic loss doctrine barred negligent hiring and supervision claims against security firm whose guards stole from the plaintiff because no Illinois case law imposed “specific duties upon providers of security services to employ honest personnel and to use reasonable care to supervise them”).

There are a number of exceptions to the Moorman doctrine, each rooted in the general rule that “[w]here a duty arises outside of the contract, the economic loss doctrine does not prohibit recovery in tort for the negligent breach of that duty.” Congregation of the Passion, Holy Cross Province v. Touche Ross & Co., 159 Ill.2d 137, 201 Ill.Dec. 71, 636 N.E.2d 503, 514 (1994). To determine whether the Moor-man doctrine bars tort claims, the key question is whether the defendant’s duty arose by operation of contract or existed independent of the contract. See Catalan v. GMAC Mortg. Corp., 629 F.3d 676, 693 (7th Cir.2011) (“These exceptions [to the economic loss doctrine] have in common the existence of an extra-contractual duty between the parties, giving rise to a cause *568of action in tort separate from one based on the contract itself.”); 2314 Lincoln Park West Condominium Ass’n v. Mann, Gin, Ebel & Frazier, Ltd., 136 Ill.2d 302, 144 Ill.Dec. 227, 555 N.E.2d 346, 351 (1990) (“the concept of duty is at the heart of distinction drawn by the economic loss rule”). If, for example, an architect bungles a construction design, the Moorman doctrine bars the aggrieved owner’s suit for negligence. See id. The shoddy workmanship is a breach of the design contract rather than a failure to observe some independent duty of care owed to the world at large.

To the extent Wells Fargo had a duty to service Wigod’s home loan responsibly and with competent personnel, that duty emerged solely out of its contractual obligations. As we recently noted, a mortgage contract itself “cannot give rise to an extra-contractual duty without some showing of a fiduciary relationship between the parties,” and no such relationship existed here. Catalan, 629 F.3d at 693 (applying Moorman doctrine). Although Wigod has a legally viable claim that the TPP Agreement bound Wells Fargo to offer her a permanent modification, Wells Fargo owed her no independent duty to employ qualified people and to supervise them appropriately in servicing her home loan. Cf. Johnson Products Co., 1998 WL 102687, at *9 (“The manufacturer of a defective product that simply does not work properly does not owe a duty in tort to the purchaser of the product to use reasonable care in producing the product. Rather, the purchaser’s remedy lies in breach of contract or breach of warranty.... [Defendant] had no obligation to use reasonable care in performing its duties, for its only obligations arose under the contract itself.”). Wigod’s rights here are contractual in nature. If Wells Fargo failed to honor their agreement — whether by hiring incompetents or simply through bald refusals to perform — contract law provides her remedies.

Wigod argues that the Moorman doctrine does not bar her negligent hiring and supervision claims because she seeks equitable relief and therefore her asserted harm goes beyond pure economic injury. But this theory assumes that there is some necessary connection between the nature of the loss alleged and the appropriate form of relief. This is not so. Purely economic losses may sometimes be best remedied through injunctive relief — when, for instance, specific performance of a contract is required to make the plaintiff whole, or when the risk of under-compensation is very high. See Anthony T. Kronman, Specific Performance, 45 U. Chi. L. Rev. 351, 362 (1978) (theorizing that specific performance is awarded where a court “cannot obtain, at reasonable cost, enough information about substitutes to permit it to calculate an award of money damages without imposing an unacceptably high risk of undercompensation on the injured promisee”). Conversely, it is routine for tort plaintiffs who have incurred non-economic losses (such as physical injury) to seek and receive monetary damages. Wigod has suffered no injury to person or property. The harm she alleges is that Wells Fargo did not restructure the terms of her mortgage and thereby caused her to default. This is a purely economic injury if ever we saw one. Wigod’s claim for negligent hiring and supervision was properly dismissed.

D. Fraud Claims

Illinois courts expressly recognize an exception to the Moorman doctrine “where the plaintiffs damages are proximately caused by a defendant’s intentional, false representation, ie., fraud.” Catalan, 629 F.3d at 693, quoting First Midwest *569Bank, N.A. v. Stewart Title Guaranty Co., 218 Ill.2d 326, 300 Ill.Dec. 69, 843 N.E.2d 327, 333 (2006); see also Stein v. D'Amico, No. 86 C 9099, 1987 WL 4934, at *3 (N.D.Ill. June 5, 1987) (applying fraud exception to Moorman doctrine for claim of fraudulent concealment). Because of this exception, the economic loss doctrine does not bar Wigod’s claim for fraudulent misrepresentation. She has adequately pled the elements of fraudulent misrepresentation but not fraudulent concealment.

1. Fraudulent Misrepresentation

The elements of a claim of fraudulent misrepresentation in Illinois are:

(1) [a] false statement of material fact (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from that reliance.

Dloogatch v. Brincat, 396 Ill.App.3d 842, 336 Ill.Dec. 571, 920 N.E.2d 1161, 1166 (2009), quoting Soules v. General Motors Corp., 79 Ill.2d 282, 37 Ill.Dec. 597, 402 N.E.2d 599, 601 (1980). Under the heightened federal pleading standard of Rule 9(b) of the Federal Rules of Civil Procedure, a plaintiff “alleging fraud ... must state with particularity the circumstances constituting fraud.” See Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502, 507 (7th Cir.2007) (“This heightened pleading requirement is a response to the great harm to the reputation of a business firm or other enterprise a fraud claim can do.”) (internal quotation marks omitted). We have summarized the particularity requirement as calling for the first paragraph of any newspaper story: “the who, what, when, where, and how.” E.g., Windy City Metal Fabricators & Supply, Inc. v. CIT Technology Financing Services, Inc., 536 F.3d 663, 668 (7th Cir.2008). Wigod’s complaint satisfies that standard. She identifies the knowing misrepresentation as Wells Fargo’s statement in the TPP that it would offer her a permanent modification if she complied with the terms and conditions of the TPP. She also alleges that Wells Fargo intended that she would act in reliance on promises it made in the TPP and that she reasonably did so to her detriment. Fraudulent intent may be alleged generally, see Fed.R.Civ.P. 9(b), so the only element seriously at issue on the pleadings is reasonable reliance.

The district court held that “Wigod could not reasonably have relied on” the TPP’s promise of a permanent modification because this “would have required her to ignore the remainder of the contract which required her to meet all of HAMP’s requirements.” We disagree. Under Illinois law, justifiable reliance exists when it was “reasonable for plaintiff to accept defendant’s statements without an independent inquiry or investigation.” In-Quote Corp. v. Cole, No. 99-cv-6232, 2000 WL 1222211, at *3 (N.D.Ill. Aug. 24, 2000); see Teamsters Local 282 Pension Trust Fund v. Angelos, 839 F.2d 366, 371 (7th Cir.1988) (“the crucial question is whether the plaintiffs conduct was so unreasonable under the circumstances and ‘in light of the information open to him, that the law may properly say that this loss is his own responsibility’ ”), quoting Chicago Title & Trust Co. v. First Arlington Nat’l Bank, 118 Ill.App.3d 401, 73 Ill.Dec. 626, 454 N.E.2d 723, 729 (1983). As explained above, the TPP as a whole supports Wigod’s reading of it to require Wells Fargo to offer her a permanent modification once it determined she was qualified and sent her an executed copy, and she satisfied the conditions precedent. Based on the pleadings, we cannot say that her alleged reliance on Wells Fargo’s promise was objectively unreasonable.

*570Wigod’s fraudulent misrepresentation claim at first seems vulnerable on other grounds, however, since it represents a claim of promissory fraud — that is, a “false statement of intent regarding future conduct,” as opposed to a false statement of existing or past fact. Association Benefit Services, Inc., 493 F.3d at 853. Promissory fraud is “generally not actionable” in Illinois “unless the plaintiff also proves that the act was a part of a scheme to defraud.” Id., citing Bradley Real Estate Trust v. Dolan Associates, Ltd., 266 Ill.App.3d 709, 203 Ill.Dec. 582, 640 N.E.2d 9, 12-13 (1994). But this “scheme exception” is broad — so broad it “tends to engulf and devour” the rule. Stamatakis Industries, Inc. v. King, 165 Ill.App.3d 879, 117 Ill.Dec. 419, 520 N.E.2d 770, 772 (1987). To invoke the scheme exception, the plaintiff must allege and then prove that, at the time the promise was made, the defendant did not intend to fulfill it. Bower v. Jones, 978 F.2d 1004, 1011 (7th Cir.1992) (“In order to survive the pleading stage, a claimant must be able to point to specific, objective manifestations of fraudulent intent — a scheme or device. If he cannot, it is in effect presumed that he cannot prove facts at trial entitling him to relief.”), quoting Hollymatic Corp. v. Holly Systems, Inc., 620 F.Supp. 1366, 1369 (N.D.Ill.1985). Such evidence would include a “a pattern of fraudulent statements, or one particularly egregious fraudulent statement.” BPI Energy Holdings, Inc. v. IEC (Montgomery), LLC, 664 F.3d 131, 136 (7th Cir.2011) (internal citations omitted).

Wigod alleges that she was a victim of a scheme to defraud: in her complaint, she accuses Wells Fargo of deliberately implementing a “system designed to wrongfully deprive its eligible HAMP borrowers of an opportunity to modify their mortgages.” Compl. ¶ 8. Whether she has alleged “specific, objective manifestations” of this scheme is a closer question, but we think it likely that Illinois courts would say yes.

The scheme alleged here does not rest solely on Wells Fargo’s single broken promise to Wigod. She claims that thousands of HAMP-eligible homeowners became victims of Wells Fargo’s “intentional and systematic failure to offer permanent loan modifications” after falsely telling them it would. Compl. ¶ 1. Illinois courts have found as few as two broken promises enough to establish a scheme to defraud. See, e.g., General Electric Credit Auto Lease, Inc. v. Jankuski, 177 Ill.App.3d 380, 126 Ill.Dec. 676, 532 N.E.2d 361, 362-63 (1988) (finding that plaintiffs pled fraudulent scheme by alleging that auto dealership falsely promised that (1) the “holding agreement” executed with plaintiffs would be cancelled once their son signed a lease for the vehicle; and (2) the son could cancel his lease if he was later transferred overseas); Stamatakis Industries, 117 Ill.Dec. 419, 520 N.E.2d at 772-74 (holding that plaintiff properly pled a scheme to defraud by alleging that defendant broke his promises to (1) make good on a contract for the purchase of equipment; and (2) enter into an employment contract for five years with a covenant not to compete). But see Doherty v. Kahn, 289 Ill.App.3d 544, 224 Ill.Dec. 602, 682 N.E.2d 163 (1997) (holding that plaintiff did not plead scheme to defraud by alleging that defendant’s broken promises that (1) plaintiff would be president of company, (2) own 65 percent of the stock, and (3) earn a specified monthly salary). In another case, the Illinois Supreme Court found that a single false promise made to the public at large satisfied the scheme exception to the general rule against promissory fraud. See Steinberg v. Chicago Medical School, 69 Ill.2d 320, 13 Ill.Dec. 699, 371 N.E.2d 634, 641 (1977) (finding a scheme to defraud alleged against a medical school that prom*571ised in its catalog to evaluate and admit applicants based on merit when in fact the school intended to make decisions based on monetary contributions). Wigod alleges that Wells Fargo made and broke promises of permanent modifications to her and to thousands of other potential class members as well. If true, such a widespread pattern of deception could reasonably be considered a scheme under Illinois law and thus actionable as promissory fraud. See HPI Health Care Services v. Mount Vernon Hospital, Inc., 131 Ill.2d 145, 137 Ill. Dec. 19, 545 N.E.2d 672, 682 (1989); Steinberg, 13 Ill.Dec. 699, 371 N.E.2d at 641.

2. Fraudulent Concealment

The heightened pleading standard of Rule 9(b) also applies to fraudulent concealment claims. To plead this tort properly, in addition to meeting the elements of fraudulent misrepresentation, a plaintiff must allege that the defendant intentionally omitted or concealed a material fact that it was under a duty to disclose to the plaintiff. Weidner v. Karlin, 402 Ill.App.3d 1084, 342 Ill.Dec. 475, 932 N.E.2d 602, 605 (2010). A duty to disclose would arise if “plaintiff and defendant are in a fiduciary or confidential relationship” or in a “situation where plaintiff places trust and confidence in defendant, thereby placing defendant in a position of influence and superiority over plaintiff.” Connick v. Suzuki Motor Co., 174 Ill.2d 482, 221 Ill. Dec. 389, 675 N.E.2d 584, 593 (1996).

Wigod alleges that Wells Fargo knowingly concealed that it would (1) report her to credit rating agencies as being in default on her mortgage; and (2) reevaluate her eligibility for a permanent modification in contravention of HAMP directives. The district court dismissed this fraudulent concealment claim due to “the absence of any fiduciary or other duty to speak” on the part of Wells Fargo as a mortgagee. See Graham v. Midland Mortg. Co., 406 F.Supp.2d 948, 953 (N.D.Ill.2005) (“A mortgagor-mortgagee relationship does not create a fiduciary relationship as a matter of law.”), quoting Teachers Ins. & Annuity Ass’n of America v. LaSalle Nat’l Bank, 295 Ill.App.3d 61, 229 Ill.Dec. 408, 691 N.E.2d 881, 888 (1998). In the district court, Wigod apparently conceded that Wells Fargo was not a fiduciary under Illinois law, but she argued that she placed a special trust and confidence in the bank as her HAMP servicer. The district court rejected this theory on the ground that any special trust relationship between Wigod and Wells Fargo existed solely through the lender’s participation in HAMP, which does not provide the borrower with a private right of action.

For two reasons, we affirm the dismissal of the fraudulent concealment claim. First, Wigod’s special trust argument is waived: in this appeal, Wigod raised the issue only in her reply brief, and arguments raised for the first time in a reply brief are waived. Padula v. Leimbach, 656 F.3d 595, 605 (7th Cir.2011). Second, even if we overlooked the waiver, we would agree with the district court that no special trust relationship existed here. Wells Fargo’s participation in HAMP is not sufficient to create a special trust relationship with Wigod and the roughly 250,000 other homeowners with whom it entered TPP Agreements. The Illinois Appellate Court has recently stated that the standard for identifying a special trust relationship is “extremely similar to that of a fiduciary relationship.” Benson v. Stafford, 407 Ill. App.3d 902, 346 Ill.Dec. 828, 941 N.E.2d 386, 403 (2010).

Accordingly, state and federal courts in Illinois have rarely found a special trust relationship to exist in the absence of a more formal fiduciary one. See, e.g., Go For It, Inc. v. Aircraft Sales Corp., No. 02 *572C 6158, 2003 WL 21504600, at *2 (N.D.Ill. June 27, 2003) (finding no confidential relationship in sale of airplane because “the parties’ relationship did not possess sufficient indicia of disparity in experience or knowledge such that defendants could be said to have gained influence and superiority over the plaintiff,” since “a slightly dominant business position does not operate to turn a formal, contractual relationship into a confidential or fiduciary relationship”); Benson, 346 Ill.Dec. 828, 941 N.E.2d at 403 (declining to find special trust relationship between options traders who had formed joint ventures because the plaintiffs alleging fraud could not show “that they trusted defendant” or that the defendant was in “a position of influence and superiority”); Martin v. State Farm Mutual Auto. Ins. Co., 348 Ill.App.3d 846, 283 Ill.Dec. 497, 808 N.E.2d 47, 52 (2004) (finding that holders of automobile insurance policy did not have a special trust relationship with their insurer because “[t]here are no allegations of a history of dealings or long-standing relationship between the parties, or that plaintiffs had entrusted the handling of their insurance affairs to State Farm in the past, or that State Farm was in a position of such superiority and influence by reason of friendship, agency, or experience”); Miller v. William Chevrolet/GEO, Inc., 326 Ill. App.3d 642, 260 Ill.Dec. 735, 762 N.E.2d 1, 13-14 (2001) (holding that the “arms length transaction” between a car dealer and a prospective customer “did not give rise to a confidential relationship sufficient to impose a general duty of disclosure under the fairly rigorous principles of common law” because “this dealer-customer relationship did not possess sufficient indicia of disparity in experience or knowledge such that the dealer could be said to have gained influence and superiority over the purchaser.”). But see Schrager v. North Community Bank, 328 Ill.App.3d 696, 262 Ill.Dec. 916, 767 N.E.2d 376, 386 (2002) (finding, despite absence of fiduciary relationship, that special trust relationship existed between the plaintiff, an investor in a real estate venture, and the defendant bank who had induced the plaintiff to invest, “because defendants’ superior knowledge and experience of [the developers’ problematic] financial history, as well as the status of the ... development project, including the necessity of a fresh guarantor, placed defendants in a position of influence over” the plaintiff).

The special relationship threshold is a high one: “the defendant must be ‘clearly dominant, either because of superi- or knowledge of the matter derived from ... overmastering influence on the one side, or from weakness, dependence, or trust justifiably reposed on the other side.’ ” Miller, 260 Ill.Dec. 735, 762 N.E.2d at 13 (internal quotation marks omitted), quoting Mitchell v. Norman James Construction Co., 291 Ill.App.3d 927, 225 Ill. Dec. 881, 684 N.E.2d 872, 879 (1997). As the Mitchell court explained:

Factors to be considered in determining the existence of a confidential relationship include the degree of kinship of the parties; any disparity in age, health, and mental condition; differences in education and business experience between the parties; and the extent to which the allegedly servient party entrusted the handling of her business affairs to the dominant party, and whether the dominant party accepted such entrustment.

225 Ill.Dec. 881, 684 N.E.2d at 879. In short, the defendant accused of fraudulent concealment must exercise “overwhelming influence” over the plaintiff. Miller, 260 Ill.Dec. 735, 762 N.E.2d at 14.

In light of the weight of Illinois authority, Wells Fargo’s role as a HAMP servicer was not sufficient to find a special trust *573relationship with Wigod with respect to negotiating any modification. She claims that “HAMP requires servicers to provide borrowers with information to help them ‘understand the modification terms’ and to ‘minimize potential borrower confusion,’” and that she “relied on Wells Fargo to convey accurate information about the Program.” Reply Br. at 33. That may be so, but asymmetric information alone does not show the degree of dominance needed to establish a special trust relationship. See Miller, 260 Ill.Dec. 735, 762 N.E.2d at 13-14. Otherwise, virtually any mortgage lender would have a special trust relationship with its borrowers, regardless of HAMP participation — a proposition Illinois courts have clearly rejected. See, e.g., id., 260 Ill.Dec. 735, 762 N.E.2d at 14 (“Like the conventional mortgagor-mortgagee relationship that the Mitchell court found to fall short of a confidential relationship, this dealer-customer relationship did not possess sufficient indicia of disparity in experience or knowledge such that the dealer could be said to have gained influence and superiority over the purchaser.”); Mitchell, 225 Ill.Dec. 881, 684 N.E.2d at 879 (“As a matter of law, a conventional mortgagor-mortgagee relationship standing alone does not give rise to a fiduciary or confidential relationship.”).10 The HAMP modification is an arm’s-length transaction between servicer and borrower, no less than is a home mortgage loan itself. By becoming Wigod’s HAMP servicer, Wells Fargo did not assume significant additional responsibility for handling Wigod’s business affairs. Like the original mortgagor-mortgagee relationship itself, the relevant aspects of the HAMP servicer-borrower relationship do not bear the fiduciary-like hallmarks of a special trust relationship under Illinois law. We affirm the dismissal of Wigod’s fraudulent concealment claim.

E. Negligent Misrepresentation or Concealment

In the alternative to her fraudulent misrepresentation and concealment claims, Wigod alleges that Wells Fargo negligently or carelessly (rather than intentionally) misrepresented or omitted material facts. Negligent misrepresentation involves the same elements as fraudulent misrepresentation, except that (1) the defendant need not have known that the statement was false, but must merely have been negligent in failing to ascertain the truth of his statement; and (2) the defendant must have owed the plaintiff a duty to provide accurate information. See Kopley Group V., L.P. v. Sheridan Edgewater Properties, Ltd., 376 Ill.App.3d 1006, 315 Ill.Dec. 218, 876 N.E.2d 218, 228 (2007).11

*574Whether or not Wigod has successfully pled the elements of negligent misrepresentation and concealment, this claim is also barred by the economic loss doctrine. Any duty Wells Fargo may have had to provide accurate information to Wigod arose directly from their commercial and contractual relationship. Wigod is right that HAMP requires servicers to help borrowers understand the modification terms. But this obligation is not owed to the general public — only to mortgagors in the HAMP modification process. If Wells Fargo had such obligations to Wigod, then, it was only because it executed a TPP agreement with her under HAMP. Any disclosure duties owed here are contractual ones and therefore do not sound in the torts of negligent misrepresentation or negligent concealment. We affirm the dismissal of these claims, and proceed to Wigod’s final cause of action.12

F. The Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA)

The ICFA protects consumers against “unfair or deceptive acts or practices,” including “fraud,” “false promise,” and the “misrepresentation or the concealment, suppression or omission of any material fact.” 815 ILCS 505/2. The Act is “liberally construed to effectuate its purpose.” Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 266 Ill.Dec. 879, 775 N.E.2d 951, 960 (2002). The elements of a claim under the ICFA are: “(1) a deceptive or unfair act or practice by the defendant; (2) the defendant’s intent that the plaintiff rely on the deceptive or unfair practice; and (3) the unfair or deceptive practice occurred during a course of conduct involving trade or commerce.” Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir.2010), citing Robinson, 266 Ill.Dec. 879, 775 N.E.2d at 960. In addition, “a plaintiff must demonstrate that the defendant’s conduct is the proximate cause of the injury.” Id. at 935.

Wigod accuses Wells Fargo of practices that are both deceptive and unfair. In her complaint, Wigod incorporates by reference her common-law fraud claims, alleging that Wells Fargo’s misrepresentation and concealment of material facts constituted deceptive business practices. Compl. ¶¶ 123-25. She also alleges that Wells Fargo dishonestly and ineffectually implemented HAMP, and that this conduct constituted “unfair, immoral, unscrupulous business practices.” Compl. ¶ 126. The district court dismissed Wigod’s ICFA claim on two grounds: first, because Wigod did not allege that Wells Fargo acted with an intent to deceive her; and second, because Wigod did not plausibly plead that Wells Fargo’s conduct caused her any actual pecuniary injury. On both points, we disagree.

First, “intent to deceive” is not a required element of a claim under the *575ICFA, which provides redress “not only for deceptive business practices, but also for business practices that, while not deceptive, are unfair.” Boyd v. U.S. Bank, N.A. ex rel. Sasco Aames Mortg. Loan Trust Series 2003-1, 787 F.Supp.2d 747, 751 (N.D.Ill.2011) (holding that a loan servicer’s alleged failure to consider the plaintiffs eligibility for a HAMP modification was a sufficient predicate for an ICFA claim); see 815 ILCS 505/2 (“[U]nfair or deceptive acts or practices ... are hereby declared unlawful____”) (emphasis added); Siegel, 612 F.3d at 934-35 (“A plaintiff may allege that conduct is unfair under ICFA without alleging that the conduct is deceptive.”), citing Saunders v. Michigan Ave. Nat’l Bank, 278 Ill.App.3d 307, 214 Ill.Dec. 1036, 662 N.E.2d 602, 608 (1996). Wigod alleges that Wells Fargo engaged in both deceptive (fraudulent) and unfair business practices. Moreover, even if she had alleged only deceptive practices, pleading intent would still be unnecessary, since a “claim for ‘deceptive’ business practices under the Consumer Fraud Act does not require proof of intent to deceive.” Siegel v. Shell Oil Co., 480 F.Supp.2d 1034, 1044 n. 5 (N.D.Ill.2007), aff'd, 612 F.3d 932.13 It is enough to allege that the defendant committed a deceptive or unfair act and intended that the plaintiff rely on that act, and Wigod has done so.

The district court also concluded that Wigod did not identify any “actual pecuniary loss” that she suffered. Because Wigod’s reduced trial plan payments were less than the amount she was legally obliged to pay Wells Fargo under the terms of her original loan documents, the court reasoned that Wigod was better off than she would have been without the TPP. This reasoning overlooks Wigod’s allegations that she incurred costs and fees, lost other opportunities to save her home, suffered a negative impact to her credit, never received a Modification Agreement, and lost her ability to receive incentive payments during the first five years of the modification. Prior to entering the trial plan, Wigod also could have taken the path of “efficient breach” and defaulted immediately rather than executing the TPP and making trial payments. By the time Wigod realized she would not receive the permanent modification she believed she had been promised, late fees had mounted and she found herself in default on her loan and with fewer options than when the trial period began. Whether any of these alternatives might have saved her home, or at least cut her losses, is impossible to determine from the pleadings. Her allegations are at least plausible. She has alleged pecuniary injury caused by Wells Fargo’s deception and successfully pled the elements of an ICFA violation. Accord Boyd, 787 F.Supp.2d at 754 (allegations of “damage to [homeowner’s] credit” and “the inability ‘to fairly negotiate a plan to stay in [his] home’ ” sufficiently pled economic *576damages under the ICFA); In re Bank of America Home Affordable Modification (HAMP) Contract Litigation, No. 10-md-02193-RWZ, 2011 WL 2637222, at *5-6 (D.Mass. July 6, 2011) (multi-district litigation) (denying motion to dismiss claims under fourteen states’ consumer protection acts, including the ICFA).14

III. Preemption and the “End-Run” Theory

We have now determined that Wigod has plausibly stated four claims arising under state law: breach of contract, promissory estoppel, fraudulent misrepresentation, and violation of the ICFA. We next examine whether federal law preempts or otherwise displaces them. “Preemption can take on three different forms: express preemption, field preemption, and conflict preemption.” Aux Sable Liquid Products v. Murphy, 526 F.3d 1028, 1033 (7th Cir.2008). Wells Fargo concedes that Wigod’s claims are not expressly preempted, but argues for both field preemption and conflict preemption. Wells Fargo also advances the novel theory that Wigod’s claims are displaced because they attempt an “end-run” on the lack of a private right of action under HAMP itself. We reject this “end-run” theory, along with Wells Fargo’s formal preemption arguments. Federal law does not displace Wigod’s state-law claims.

A. Field Preemption

In all preemption cases, “we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009) (internal quotation marks omitted), quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). Under the doctrine of field preemption, however, a state law is preempted “if federal law so thoroughly occupies a legislative field ‘as to make reasonable the inference that Congress left no room for the States to supplement it.’ ” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (internal quotation marks omitted), quoting Fidelity Federal Savings & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982).

Wells Fargo argues that the Home Owners Loan Act (HOLA) occupies the relevant field. Enacted to provide emergency relief from massive home loan defaults during the Great Depression, HOLA “empowered what is now the Office of Thrift Supervision [OTS] in the Treasury Department to authorize the creation of federal savings and loan associations, to regulate them, and by its regulations to preempt conflicting state law.” In re Ocwen Loan Servicing, LLC Mortg. Ser*577vicing Litigation, 491 F.3d 638, 642 (7th Cir.2007). In one of its regulations, OTS announced that it “hereby occupies the entire field of lending regulation for federal savings associations.” 12 C.F.R. § 560.2(a). In the same section, however, the regulation contains the following saving clause: state tort, contract, and commercial laws are “not preempted to the extent that they only incidentally affect the lending operations of Federal savings associations or are otherwise consistent with the purposes of paragraph (a) of this section.” 12 C.F.R. § 560.2(c). Read together, these provisions mean that state laws that establish licensing, registration, or other requirements specific to financial institutions cannot be applied to national banks, while laws of general applicability survive preemption so long as they do not effectively impose standards that conflict with federal ones. Cf. Watters v. Wachovia Bank, N.A., 550 U.S. 1, 11, 127 S.Ct. 1559, 167 L.Ed.2d 389 (2007) (“Federally chartered banks are subject to state laws of general application in their daily business to the extent such laws do not conflict with the letter or the general purposes of [federal banking law].”) (analyzing preemption under the National Bank Act, which is applied analogously to HOLA).15

Arguing for field preemption, Wells Fargo contends that HOLA and the corresponding OTS regulations displace state common-law suits that effectively impose any standards for the processing and servicing of mortgage loans, whether they conflict with federal policy or not. This argument is directly at odds with the saving clause of 12 C.F.R. § 560.2(c) and inconsistent with our decision in Ocwen. There we noted that HOLA gave OTS the “exclusive authority to regulate the savings and loan industry in the sense of fixing fees (including penalties), setting licensing requirements, prescribing certain terms in mortgages, establishing requirements for disclosure of credit information to customers, and setting standards for processing and servicing mortgages.” Ocwen, 491 F.3d at 643. Despite its regulatory authority, however, OTS “has no power to adjudicate disputes between [savings and loan associations] and their customers,” and “HOLA creates no private right to sue to enforce the provisions of the statute or the OTS’s regulations.” Id. “Against this background of limited remedial authority,” we held that HOLA and the OTS regulations did not preempt suits by “persons harmed by the wrongful acts of savings and loan associations” seeking “basic state common-law-type remedies,” and we allowed state-law claims like those in this case — breach of contract, fraud, and violation of consumer protection statutes— to go forward. Id. Some federal statutes do receive such wide berths as to displace virtually all state laws in the neighborhood. (The National Labor Relations Act and ERISA are the best examples.) Such laws are “exceptional,” though, and HOLA is not one of them. Id. at 644. Ocwen thus stands for the principle that HOLA preempts generally applicable state laws only when they “could interfere with federal regulation” — that is, those that actually conflict with the regulatory program. Id. at 646. We decline to disturb this holding, which forecloses Wells Fargo’s argument for field preemption.

B. Conflict Preemption

The Supreme Court has “found implied conflict pre-emption where” either *578(1) “it is impossible for a private party to comply with both state and federal requirements,” or (2) “where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995) (internal quotation marks omitted). Wells Fargo does not contend that it would be impossible, without violating federal law, for it to comply with the state-law duties Wigod’s suit seeks to impose. Instead, it invokes the second species of conflict preemption, which is known as “obstacle” preemption. Wells Fargo says that entertaining Wigod’s state-law claims here would undermine the purposes of Congress in two ways: First, it would “substantially interfere with Wells Fargo’s ability to service residential mortgage loans” in accordance with HOLA and OTS regulations.16 Second, it would “frustrate Congressional objectives in enacting [the 2008 Act] ... to stabilize the economy and provide a program to mitigate ‘avoidable’ foreclosures.”

The first argument for obstacle preemption, like Wells Fargo’s theory of field preemption, is inconsistent with Ocwen. There we held that the plaintiff-mortgagors’ “conventional” state law claims against a federal savings and loan association for breach of contract, fraud, and deceptive business practices complemented rather than conflicted with HOLA:

Suppose an S & L signs a mortgage agreement with a homeowner that specifies an annual interest rate of 6 percent and a year later bills the homeowner at a rate of 10 percent and when the homeowner refuses to pay institutes foreclosure proceedings. It would be surprising for a federal regulation to forbid the homeowner’s state to give the homeowner a defense based on the mortgagee’s breach of contract. Or if the mortgagee ... fraudulently represents to the mortgagor that it will forgive a default, and then forecloses, it would be surprising for a federal regulation to bar a suit for fraud.... Enforcement of state law in either of the mortgage-servicing examples above would complement rather than substitute for the federal regulatory scheme.

Ocwen, 491 F.3d at 643-44. In our attempt to untangle in that case the complaint’s “gallimaufry” of alleged “skullduggery,” we distinguished claims asserting “conventional” misrepresentation or breach of contract (which were not preempted) from those that would have effectively imposed state-law rules governing mortgage servicing and thereby “interfere[d] with federal regulation of disclosure, fees, and credit terms” (which were preempted). Id. at 644-46. Thus a claim under Connecticut’s consumer protection statute alleging “exorbitant and usurious mortgages” was preempted, while “straight fraud claims” arising under both state common-law and consumer fraud statutes were not preempted. Id. at 647 (internal quotation mark omitted).

Wells Fargo appears to concede, as it must in light of Ocwen, that HOLA does not preempt Wigod’s breach of contract claim or her common-law fraudulent representation claim. Wells Fargo nevertheless maintains that conflict preemption principles bar Wigod’s ICFA claims, attempting to distinguish Ocwen by arguing that these claims “would necessarily establish new standards for servicers’ customer relation policies.” The argument is not persuasive. The gist of Wigod’s ICFA claims is that *579Wells Fargo failed to disclose that it was going to reevaluate her eligibility for a permanent modification — contrary to the terms of both her TPP and HAMP program guidelines — and that it deceived her into believing it would modify her mortgage. Allowing these claims to proceed against Wells Fargo would not create state-law duties for servicing home mortgages, let alone ones that “actually conflict” with HOLA “or federal standards promulgated thereunder.” See Geier v. American Honda Motor Co., 529 U.S. 861, 869, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). In Ocwen, we found that the “straight fraud claims” arising under various state consumer protection statutes were not subject to conflict preemption under HOLA. 491 F.3d at 644-45, 647. Here, too, Wigod’s ICFA claims “sound[ ] like conventional fraud charge[s],” the prosecution of which appears perfectly consistent with federal mortgage rules. Id. at 645. HOLA does not preempt them.

Wells Fargo’s second conflict preemption theory is that a finding of liability in Wigod’s suit would frustrate Congressional objectives in enacting the 2008 Act that authorized HAMP. Wells Fargo argues that claims like Wigod’s would generate such friction in three ways: First, they would force servicers to modify mortgages in violation of both Treasury directives and the servicers’ contractual obligations to the government. Second, they would invite many uncoordinated lawsuits, exposing servicers to varying standards of conduct. Third, they would discourage servicers from participating in HAMP. The arguments are not persuasive.

The first theory is inapplicable because none of Wigod’s claims, at least as she has framed them, would impose on Wells Fargo any duties that go beyond its existing obligations under HAMP. As Wigod puts it, “if Wells Fargo followed the letter of the Program it would not have breached its contracts, acted negligently or fraudulently, or violated the ICFA.” The whole thrust of this suit is that Wells Fargo failed to do what it agreed to do and what HAMP required it to do. The breach of contract and fraudulent misrepresentation claims allege that the TPP Agreement required Wells Fargo to offer Wigod a modification if she qualified under HAMP — and that she did and it didn’t.

One Wells Fargo defense, among others, will be that Wigod was not actually qualified, but that presents a factual dispute that cannot be resolved now. Likewise, the ICFA claim alleges that Wells Fargo failed to disclose that it would not follow HAMP guidelines. Again, it would be a complete defense that Wells Fargo did follow HAMP guidelines as they were incorporated into the terms of Wigod’s TPP, but that also presents a factual issue. For each of these claims, the state-law duty allegedly breached is imported from and delimited by federal standards established in HAMP’s program guidelines. Where federal law supplies the standard of care imposed by state law, it is hard to see how they could conflict. See, e.g., Bates v. Dow Agrosciences LLC, 544 U.S. 431, 448, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005) (“a state cause of action that seeks to enforce a federal requirement ‘does not impose a requirement that is different from, or in addition to, requirements under federal law.’ ”) (internal quotation marks omitted), quoting Lohr, 518 U.S. at 513, 116 S.Ct. 2240 (O’Connor, J., concurring in part and dissenting in part); Lohr, 518 U.S. at 495, 116 S.Ct. 2240 (majority opinion) (“Nothing ... denies Florida the right to provide a traditional damages remedy for violations of common-law duties when those duties parallel federal requirements.”); Bausch v. Stryker Corp., 630 F.3d 546, 556 (7th Cir.2010) (holding that the Food, *580Drug, and Cosmetic Act did not preempt the plaintiffs tort claims against medical device manufacturer because the state tort duty allegedly breached was parallel to FDA regulations promulgated under the Act; “claims are not ... preempted by federal law to the extent they are based on defendants’ violations of federal law”).

For the same reason, we do not foresee any possibility that permitting suits such as Wigod’s will expose mortgage servicers to multiple and varied standards of conduct. So long as state laws do not impose substantive duties that go beyond HAMP’s requirements, loan servicers need only comply with the federal program to avoid incurring state-law liability. This is not a case in which the federal requirements leave much room for interpretation, but to the extent Wigod’s case hinges on construing Treasury directives, they “present questions of law for the court to decide, not questions of fact for a jury to decide.” See Bausch, 630 F.3d at 556.

As for its contention that the potential exposure to state liability may discourage servicers from participating in HAMP, Wells Fargo may be right. But that is hardly an argument for conflict preemption. “[T]he purpose of Congress is the ultimate touchstone in every preemption case.” Wyeth, 555 U.S. at 565, 129 S.Ct. 1187, quoting Lohr, 518 U.S. at 485, 116 S.Ct. 2240. “Because the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action.” Bates, 544 U.S. at 449, 125 S.Ct. 1788, also quoting Lohr, 518 U.S. at 485, 116 S.Ct. 2240. We can reasonably assume that one purpose of Congress in enacting the 2008 Act was to ensure mortgage servicers participated in the foreclosure mitigation programs it empowered Treasury to set up. But another goal was surely to prevent these banks from hoodwinking borrowers in the process. Nothing in the 2008 Act suggests that Congress saw servicer participation as the Act’s paramount purpose that would trump any concerns about whether servicers were actually complying with the program and with their contractual obligations. See Rodriguez v. United States, 480 U.S. 522, 525-26, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) (“no legislation pursues its purposes at all costs”). There is no indication that Congress meant to foreclose suits against servicers for violating state laws that impose obligations parallel to those established in a federal program.

In addition, Treasury’s own HAMP directive states that servicers must implement the program in compliance with state common law and statutes. See Supplemental Directive 09-01 (“Each servicer ... must be aware of, and in full compliance with, all federal state, and local laws (including statutes, regulations, ordinances, administrative rules and orders that have the effect of law, and judicial rulings and opinions).... ”). This would be an odd provision if Treasury had anticipated that HAMP would preempt state-law claims, especially ones that mirror its own directives. In this context, the agency’s own tacit view of its program’s lack of preemptive force is entitled to some weight. See Wyeth, 555 U.S. at 577, 129 S.Ct. 1187 (agencies “have a unique understanding of the statutes they administer and an attendant ability to make informed determinations about how state requirements may pose an ‘obstacle to the accomplishment and execution of the full purposes and objectives of Congress’ ”), quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941); Geier, 529 U.S. at 883, 120 S.Ct. 1913 (placing “some weight” on agency’s interpretation of its own regulation’s objectives and its conclusion “that a tort suit ... would *581‘stand as an obstacle to the accomplishment and execution’ of those objectives”) (internal citations and quotation marks omitted).

C. The “End-Run” Theory

Finally, Wells Fargo insists that Wigod’s case cannot go forward because her allegations are “HAMP claims in disguise” and an “impermissible end-run around the lack of a private action in [the 2008 Act] and HAMP.” This “end-run” theory was the primary basis on which the district court dismissed Wigod’s complaint. That court explained that “ ‘the facts and allegations as pleaded in this case are premised chiefly on the terms and procedures set forth via HAMP and are not sufficiently independent to state a separate state law cause of action.’ ” Wigod, 2011 WL 250501, at *4, quoting Vida v. OneWestBank, F.S.B., No. 10-987-AC, 2010 WL 5148478, at *3-4 (D.Or. Dec. 13, 2010). Wells Fargo has developed the same theory before this court, arguing: “If Congress had intended courts to be adjudicating whether a borrower qualified for a loan modification under [the 2008 Act] or HAMP, it would have provided a private right of action — but it chose not to do so.”

The end-run theory is built on the novel assumption that where Congress does not create a private right of action for violation of a federal law, no right of action may exist under state law, either. Wells Fargo and the district court appear to have conflated two distinct lines of cases — one involving the existence of a federal private right of action, see Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979), and the other about federal preemption of state law. Wells Fargo invokes Touche Ross for the proposition that “when Congress wished to provide a private damage remedy, it knew how to do so and did so expressly.” Appellee’s Br. at

15, quoting Touche Ross, 442 U.S. at 572, 99 S.Ct. 2479. If this case involved whether to recognize a federal right of action under HAMP, Touche Ross and its progeny would certainly weigh in favor of judicial caution. See Karahalios v. Nat’l Federation of Federal Employees, Local 1263, 489 U.S. 527, 533, 109 S.Ct. 1282, 103 L.Ed.2d 539 (1989) (“It is also an ‘elemental canon’ of statutory construction that where a statute expressly provides a remedy, courts must be especially reluctant to provide additional remedies [under federal law].”), quoting Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 19, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979). The issue here, however, is not whether federal law itself provides private remedies, but whether it displaces remedies otherwise available under state law. The absence of a private right of action from a federal statute provides no reason to dismiss a claim under a state law just because it refers to or incorporates some element of the federal law. See, e.g., Bates, 544 U.S. at 448, 125 S.Ct. 1788 (“although [the Federal Insecticide, Fungicide, and Rodenticide Act] does not provide a federal remedy to farmers and others who are injured as a result.of a manufacturer’s violation of FIFRA’s labeling requirements, nothing in [the statute] precludes States from providing such a remedy”). To find otherwise would require adopting the novel presumption that where Congress provides no remedy under federal law, state law may not afford one in its stead.

To appreciate the novelty of Wells Fargo’s argument, consider the many cases in which the Supreme Court has confronted issues of subject matter jurisdiction presented by state common-law claims that incorporate federal standards of conduct, without so much as a peep about whether state law may do so without being preempted. See, e.g., Grable & Sons Metal Products, Inc. v. Darue Engineering & *582Mfg., 545 U.S. 308, 312, 311, 315, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005) (quiet title action brought under state law “turn[ed] on substantial question[] of federal law” because “the interpretation of the notice statute in the federal tax law” was an “essential element of [plaintiffs] quiet title claim”); Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 805-07, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986) (violation of federal labeling requirements in the Federal Food, Drug, and Cosmetic Act created a rebuttable presumption of negligence and proximate cause under state tort law); Moore v. Chesapeake & Ohio Ry., 291 U.S. 205, 214-15, 54 S.Ct. 402, 78 L.Ed. 755 (1934) (Kentucky worker’s compensation statute provided that employer railroad’s violation of Federal Safety Appliance Acts would constitute negligence per se under state law).

Of course, these well-known cases grappled with an issue different from the one before this court: whether the presence of a federal issue in a state-created cause of action gives rise to federal question jurisdiction under 28 U.S.C. § 1331. In none of these cases has the Supreme Court even suggested that the absence of a private right of action under a federal statute would prevent state law from providing a cause of action based in whole or in part on violations of the federal law. When the issue is whether “arising under” jurisdiction is available, Congressional silence matters a great deal, for our jurisdiction under § 1331 is determined by Congress. See Merrell Dow, 478 U.S. at 812, 106 S.Ct. 3229 (stating that it would “undermine ... congressional intent to ... exercise federal-question jurisdiction and provide remedies for violations of [a] federal statute” that contains no private right of action, “solely because the violation of the federal statute” is an element of state law claim).

When the federal court’s jurisdiction over state-law claims is based on diversity of citizenship, however, the absence of a private right of action in a federal statute actually weighs against preemption. See, e.g., Wyeth, 555 U.S. at 574, 129 S.Ct. 1187 (“Congress did not provide a federal remedy for consumers harmed by unsafe or ineffective drugs in the 1938 statute or in any subsequent amendment. Evidently, it determined that widely available state rights of action provided appropriate relief for injured consumers.”). We realize that Wells Fargo does not style its end-run theory as a preemption argument. But in the absence of any other doctrinal foundation for it, we see no other way to classify it. As Judge Hibbler wrote in one of the HAMP cases in which claims under Illinois law survived a motion to dismiss,

[There is no] general rule that where a state common law theory provides for liability for conduct that is also violative of federal law, a suit under the state common law is prohibited so long as the federal law does not provide for a private right of action. Indeed, it seems the only justification for such a rule would be federal preemption of state law.

Fletcher v. OneWest Bank, FSB, 798 F.Supp.2d 925, 930-31 (N.D.Ill.2011); see also Bosque, 762 F.Supp.2d at 351 (“The fact that a TPP has a relationship to a federal statute and regulations does not require the dismissal of any state-law claims that arise under a TPP.”). In short, a state-law claim’s incorporation of federal law has never been regarded as disabling, whether the federal law has a private right of action or not. See Grable & Sons, 545 U.S. at 318-19, 125 S.Ct. 2363 (“The violation of federal statutes and regulations is commonly given negligence per se effect in state tort proceedings.”), quot*583ing Restatement (Third) of Torts § 14, Reporters’ Note, cmt. a, p. 195 (Tent. Draft No. 1, Mar. 28, 2001); Merrell Dow, 478 U.S. at 816, 106 S.Ct. 3229 (“violation of the federal standard as an element of state tort recovery did not fundamentally change the state tort nature of the action”); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 36, p. 221, n.9 (5th ed. 1984) (“the breach of a federal statute may support a negligence per se claim as a matter of state law”).

Wells Fargo has tried to find some support for its end-run theory in two Second Circuit cases involving very different statutes. In Grochowski v. Phoenix Construction, 318 F.3d 80 (2d Cir.2003), a construction contract between the City of New York and some general contractors required the latter to pay their laborers in accordance with the Davis-Bacon Act (DBA), a federal law that accords no private right of action, at least under Second Circuit precedent.17 The contractors did not do so, and their laborers sued them under New York common law for breach of contract as third-party beneficiaries. The district court granted the contractors’ motion to dismiss. A divided panel of the Second Circuit affirmed, reasoning that “no private right of action exists under” the DBA and that “the plaintiffs’ efforts to bring their claims as state common-law claims are clearly an impermissible ‘end run ’ around the DBA.” Id. at 86 (emphasis added). The majority’s only elaboration of this theory was the following:

At bottom, the plaintiffs’ state-law claims are indirect attempts at privately enforcing the prevailing wage schedules contained in the DBA. To allow a third-party private contract action aimed at enforcing those wage schedules would be “inconsistent with the underlying purpose of the legislative scheme and would interfere with the implementation of that scheme to the same extent as would a cause of action directly under the statute.” Davis v. United Air Lines, Inc., 575 F.Supp. 677, 680 (E.D.N.Y.1983).

Grochowski, 318 F.3d at 86.

Judge Lynch dissented, criticizing the majority’s reliance on the “proposition[ ] that the plaintiffs may not make an ‘end-run’ around the absence of a private right of action” in the DBA.

That, I respectfully submit, is a slogan, not an argument. And it is an erroneous slogan at that....

... The majority fails to cite any actual evidence, in the language or legislative history of the DBA, that Congress intended to prevent state law contract suits based on contractual promises to pay DBA prevailing wages — promises that Congress specifically required to be written into contracts that it must have assumed would be enforceable, like any other contracts, under state law....

... If New York law provides a right or remedy, any plaintiff has an absolute right to invoke it, unless the New York law is contrary to or pre-empted by federal law. But the majority does not even make a pass at demonstrating that the DBA displaces state contract law, or that New York’s willingness to enforce contractual promises to pay the prevailing wage is contrary to, rather than supportive of, the federal policy embodied in the DBA.

Id. at 90-91 (Lynch, J., dissenting in part). We think Judge Lynch has the better of *584this argument.18 The end-run theory, as it is described by the majority, bears a striking resemblance to obstacle preemption, with its reference to the state law’s “ineonsisten[cy] with the underlying purpose of the [federal] regulatory scheme.” Id. at 86. Yet, as Judge Lynch pointed out, there is no evidence that Congressional intent — the touchstone of any preemption inquiry — was to preempt state law with the DBA. It seems to us that the Grochowski end-run theory is really just an “end-run” around well-established preemption doctrine, and we decline to adopt it.19

Wells Fargo also cites Broder v. Cablevision Systems Corp., 418 F.3d 187 (2d Cir.2005), which contains a brief and tepid reference to Grochowski. The case in*585volved a cable television provider that extended a discounted rate to certain customers without offering or disclosing it to others — a practice the plaintiff alleged to violate both the federal Consumer Protection and Competition Act (CPCA) and a New York state statute. Neither law, however, provided for a private right of action, so the plaintiff sued for common-law breach of contract and fraud and for deceptive practices under the New York General Business Law. The Second Circuit affirmed the dismissal of the plaintiffs breach of contract claim on the ground that “the contract language ... unambiguously foreclosed] his claims.” Broder, 418 F.3d at 197. The court did not rely on Grochowski, but noted that the district court had embraced its end-run theory in an “alternative ground of decision.” Broder, 418 F.3d at 198 (emphasis added). The panel wrote:

However narrow or broad the proper interpretation of our holding in Grochowski may be, that case stands at least for the proposition that a federal court should not strain to find in a contract a state-law right of action for violation of a federal law under which no private right of action exists.

Broder, 418 F.3d at 198. Here, however, we have found that Wigod has alleged a breach of contract claim under the plain language of the TPP agreement, with no “straining” required to reach this conclusion. Thus, even if Broder had endorsed Grochowski’s end-run theory, and even if it had done so in its holding rather than in dicta, it would not apply to Wigod’s breach of contract claim.

The end-run theory made a second appearance in Broder during the court’s discussion of the plaintiffs deceptive practices claims under the New York General Business Law, although the court did not call it that or even cite Grochowski. Instead, the court used the term “circumvention,” holding that the plaintiff was not allowed to “circumvent the lack of a private right of action for violation of’ the CPCA by alleging that non-uniform rates were deceptive under state law. Id. at 199. From Congress’s omission of a private right of action in the CPCA, the court inferred that it intended to foreclose state remedies as well, and declined to “attribute[ ] to the New York legislature an intent to thwart Congress’s intentions.” Id.

We find that inference difficult to reconcile with cases like Bates, 544 U.S. at 448, 125 S.Ct. 1788, and Wyeth, 555 U.S. at 574, 129 S.Ct. 1187, but it matters little since this part of Broder’s holding is easily distinguishable. Broder dealt with a different federal law altogether and expressly confined its holding to apply only to the CPCA. Broder, 418 F.3d at 199. Furthermore, Wigod’s ICFA claims do not allege that Wells Fargo engaged in unfair or deceptive business practices by violating HAMP guidelines. Rather, she contends that Wells Fargo’s misrepresentation and omission of material facts misled her to believe she would receive a permanent modification under HAMP and that it implemented its HAMP compliance procedures in a way designed to thwart borrowers’ legitimate expectations. The plaintiff in Broder, in contrast, alleged that Cablevision’s violation of the CPCA’s uniform rate requirement was itself a deceptive practice. In his reply brief to the Second Circuit, he refined his argument along the lines of Wigod’s. The court indicated that this “subtler argument” was more passable but declined to consider it because it was waived. Id. at 202. Wigod has made this argument all along, and so her ICFA claims are not inconsistent with Broder.

IV. Conclusion

We predict that the Illinois courts would find some of Wigod’s claims actionable un*586der the laws of their state, and we can find no basis in the law of federal preemption that would bar those claims. The judgment of the district court is therefore Reversed as to Counts I, II, and VII, and the fraudulent misrepresentation claim of Count V, and Affirmed as to Counts IV, VI, and the fraudulent concealment claim of Count V. The case is Remanded for further proceedings on the surviving counts.

RIPPLE, Circuit Judge,

concurring.

I am very pleased to join the excellent opinion of the court written by Judge Hamilton. I write separately only to note that, in my view, our task of adjudicating this matter would have been assisted significantly if the United States had entered this case as an amicus curiae.

The Emergency Economic Stabilization Act, P.L. 110-343, 122 Stat. 3765, and the programs implemented under its authority are of vital importance to the economic health of the Country. Prolonged litigation is hardly a catalyst to the effective administration of these programs. As the opinion for the court details with great care, the program at issue here has been the subject of many cases in the district courts. Efficient and accurate resolution in this court is important to the effective administration of the legislative program and, in that respect, the views of the executive department charged with the administration of the statute undoubtedly would have been of great assistance.

I hasten to add that, in suggesting that the participation of the United States would have been helpful to us, I do not mean to criticize in the least the efforts of counsel for the private parties before us. The perspective brought to a case such as this by the Government is simply different. It is uniquely qualified to express the purpose and the operation of the statute and to represent the public interest.

I also must qualify my view in another respect. From my vantage point, I am not privy, of course, to the myriad of considerations that must govern the allocation of legal resources in a Government whose legal talent is certainly not under-used. Indeed, the demands on those resources are overwhelming. It may well be that the participation of the Government in a case such as this one is simply not possible in the real world of limited resources in which we live.

I note that it is possible for the court to invite the Government’s participation as an amicus in cases of such public importance. Indeed, we do so with some regularity. There are, however, costs to proceeding in that manner. The need for such participation often becomes apparent only after there has been significant judicial scrutiny of the case. Such scrutiny is possible, at least in this circuit, only shortly before oral argument. As a practical matter, seeking the participation of the Government at that point in the life of an appellate case inevitably increases, often significantly, the elapsed time before final adjudication.

In this case, this last consideration justifies the decision to proceed without further delay. Prompt resolution of this matter is necessary not only for the good of the litigants but for the good of the Country. As the quality of my colleague’s opinion reflects, moreover, there is no reason for further delay. Nevertheless, the salutary practice of the Government’s participating in private litigation of public importance must remain alive and well in the tradition of the court.